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OPINION 

OF 

THE ATTORNEY GENERAL 

ON THE ACT TO REMODEL THE 

DIPLOMATIC AND CONSULAR SYSTEMS 

ts 0F 

* £r 

THE UNITED STATES, 

APPROVED MARCH 1, 1855. 

AND 

SECTION III OF THE ACT APPROVED MARCH 3. 1855 ; AMENDATORY 

THEREOF. 










































































































































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OPINION 


OF 


THE ATTORNEY GENERAL 


ON SO MUCH OF THE ACT TO REMODEL THE 


DIPLOMATIC AND CONSULAR SYSTEMS 


OF 


THE UNITED STATES, 


APPROVED MARCH 1, 1855, 


AND 


SECTION III OF THE ACT APPROVED MARCH 3, 1855, AMENDATORY 


THEREOF, AS RELATES TO DIPLOMATIC AGENTS. 



WASHINGTON: 

A. O. P. NICHOLSON, PUBLIC PRINTER. 

1855. 







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CIRCULAR TO UNITED STATES DIPLOMATIC AGENTS. 


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OPINION. 


Attorney General’s Office, 

May 25, 1855. 

Sir: Your communication of the 17th instant presents a 
series of ten questions as to the construction of sundry pro¬ 
visions of the act of the last session of Congress, entitled 
u An act to remodel the diplomatic and consular systems of 
the United States.” 

Of these questions, three relate to the appointment or 
compensation of ministers pro.per or secretaries of lega¬ 
tion; seven to the appointment and compensation of con¬ 
suls. I propose, in the present communication, to dispose 
of so much only of said questions as regards ministers and 
secretaries of legation. 

These questions are as follows: 

1. “Can the President, without the advice and consent 
of the Senate, appoint envoys extraordinary and ministers 
plenipotentiary in the place of the ministers resident, and 
a secretary of legation to each of them ?'” 

2. “If such appointments cannot be or are not made be¬ 
fore the meeting of the Senate and with its advice, can the 
ministers resident remain in office after the 30th of June 
next, and until they are superseded by envoys?” 

3. “If they can remain in office after the 30th of June 
next, can they be paid out of the appropriations, and at 
what rate ? ” 

In order to answer these questions intelligently, it will 
be necessary to take into consideration, first, the system of 
diplomatic representation actually existing among the 


6 


powers of Christendom; secondly, the course of legislation 
in the United States hitherto; and thirdly, then to connect 
with these premises the new and material provisions of the 
late act of Congress. 

The modern law of nations recognises a class of public 
officers, who, while bearing various designations, which are 
chiefly significant in the relation of rank, precedence or 
dignity, possess in substance the same functions, rights, and 
privileges, being agents of their respective governments 
for the transaction of its diplomatic business abroad, pos¬ 
sessing such powers as their respective governments may 
please to confer, and enjoying, as a class/established legal 
rights and immunities of person and property in the gov¬ 
ernments to which they are accredited, as the representa¬ 
tives of sovereign powers. 

Disregarding questions of dignity, these diplomatic agents 
might all be denominated either ambassadors , because they 
are immediate officers of the sovereign; or envoys, because 
they are persons sent ; or ministers , because engaged in 
service or public duty ; or procurators, because they are 
the proctors of their respective governments; or legates , 
because officially employed as the substitute of the supe¬ 
rior ; or nuncios or inter nuncios, because they are mes¬ 
sengers to or between governments; or deputies', because 
they are deputed; or commissioners, because they hold 
and discharge commissions; or charges d'affaires, because 1 
they ' are charged with affairs;' or agents, because they' act 
for their governments. ' All these and perhaps other desig¬ 
nations of public ministers are found in the history of 
liioflern negotiations, the name having no fixed relation to 
the functions or power, or true nature of the office. 

" In the Simple indication of duties, these public ministers 


would be divisible into three obvious subdivisions of dif¬ 
ference, namely: first, procurators, ambassadors, legates; 
nuncios, internuncios, envoys, ministers, commissioners, 
deputies, charges d’affaires, agents, ordinary, and the same 
extraordinary, that is, special ,-—for the word extraordinary 
in this relation means that and nothing more; secondly, 
procurators, ambassadors, legates, nuncios, internuncios; 
ministers, envoys, commissioners, deputies, charges d’affaires, 
agents, resident, and the same non-resident or transient; 
and thirdly, legates, nuncios, ambassadors, procurators, in¬ 
ternuncios, envoys, ministers, commissioners, deputies; 
charges d’affaires, agents, plenipotentiary, and the same 
not plenipotentiary or with limited powers. 

But, in the process of time, sometimes to flatter the pride 
of the sovereign represented, or that of the representative, 
or that of the government addressed; at other times to in¬ 
dicate shades of difference in functions, or' in the plan or 
manner of exercising them;—under the influence of these 
and other causes, arbitrary and artificial distinctions have 
grown up in the use of titles or names of these officers, 
which distinctions of name are for the most part inde¬ 
pendent of, or even absolutely, contrary to, the truth and 
substance of the things they pretend to designate. 

Thus it is that the title “ambassador,” in its etymology 
and origin the most equivocal of all the titles in the class,-— 
for “ambascia ” is “ officium vel ministerium quodcunque, 
nobile et icjnobile;” and “ambactus” is “ servus conduct^ 
tins and u ambasciata” at this day is any message, though 
borne by a household servant;—-this title so humble in its 
origin, has come to designate a diplomatic agent of the 
highest rank in the class, because taken to be the most 
dirent representative .of.the sovereign; and thus in fact re< 


8 


viving its original use of the personal client or servant of 
the chief or prince. 

Thus it is, also, that the Papal See arrogates to itself the 
appointment of peculiar ministers assumed to belong to 
the highest rank, under the name of legate or nuncio, both 
of which terms are in their nature as ordinary, and the 
latter as humble, as any in the whole category. 

Thus it is also, that the ordinary envoy, or diplomatic 
agent of regular and ordinary functions, is by mere titu¬ 
lar exaggeration turned into envoy extraordinary, while 
another diplomatic agent, who is no more a resident min¬ 
ister than he, and just as much an extraordinary envoy, is 
denominated merely a minister resident. 

Thus it is, also, that in one of the varieties of diplomatic 
agents, to the title u envoy extraordinary ,” which is false, 
is added the further title of “minister plenipotentiary ,” 
which is inexact, both in fact and by speciality of applica¬ 
tion ; for it is not usual to give to any diplomatic agent 
general plenipotentiary powers, but limited ones; and such 
powers, whatever they may be, as are given to envoys, 
ordinary or extraordinary, are frequently given to com¬ 
missioners, ministers resident, or even charges d’affaires. 

And thus it is that the title charge d’affaires, which is 
in itself quite as generic and comprehensive as any of the 
others, and may be and often is borne by persons exercis¬ 
ing as ample and high functions as any of the others, has 
settled into the designation of a mere provisional officer, 
and in dignity of the lowest rank. 

As to the title of 11 commissioner,” which is in fact 
more comprehensive in signification than the others, that 
also, like deputy, when held by a person having foreign 
diplomatic functions, as distinguished from functions inter- 


9 


nal or administrative, has come to have something of spe¬ 
cific meaning by reason of its very indefiniteness, as im¬ 
plying a diplomatic agent of rank and functions undefined 
either as respects the nature of his powers, or the place of 
exercising them; but has more commonly been used to 
denote a minister, the range of whose duties and powers 
is not confined to a particular court, and does not depend 
on his presentation there, as illustrated in the example of 
commissioners to negotiate and sign treaties of peace, or 
to open new relations with some foreign power. 

With diplomatic agents thus existing as a class, of re¬ 
cognised legal rights, but of irregular and vague diversi¬ 
ties of title and of power, the Constitution of the United 
States intervenes to lay the foundation of their appoint* 
ment under this Government, in these words : 

“ The President * * shall have power, hy and with the advice 
and consent of the Senate, to make treaties, provided two-thirds 
of the senators present concur ; and he shall nominate, and, by 
and with the advice and consent of the Senate, appoint, ambas¬ 
sadors, other public ministers and consuls, judges of the Supreme 
Court, and all other officers of the United States, where appoint¬ 
ments are not herein otherwise provided for, and which shall he 
established hy law.” 

Thus it is perceived that the Constitution, specifying 
“ ambassadors” only, as examples of a class, empowers the 
President to appoint these and other “public ministers,” 
that is, any such officers as by the law of nations are recog¬ 
nised as u public ministers,” without making the appoint¬ 
ment of them subject, like “other (non-enumerated) offi¬ 
cers,” to the' exigency of an authorizing act of Congress. 
In a word, the power to appoint diplomatic agents, and to 
select for employment any one out of the varieties of the 
D —2 


10 


class, according to his judgment of . the public service, is a 
constitutional function of the President, not derived from,, 
nor limitable by, Congress, but requiring only the ultimate 
concurrence of the Senate; and so it was understood in 
the early practice of the Government. 

At this period of time, the only pertinent point seri¬ 
ously made was, whether the Senate were to judge of the 
expediency of the mission or negotiation, or only of the 
fitness of the person. (Marshall’s Life of Washington, vol. 
y, p. 370, note; Story’s Com. Const., vol. ii, p. 332, note.) 
It was not pretended that an act of Congress constituted 
the essential prerequisite of the rank or designation of a 
minister, or the institution of a mission or negotiation by 
the Executive. 

Accordingly, at the first session of the first Congress of 
the present United States, an act-was passed to establish 
the Department of Foreign Affairs, with a Secretary there¬ 
of, having charge of the correspondences, commissions, or 
instructions to or with public ministers or consuls from 
the United States, (i Stat. at Large, p. 28); but no enact¬ 
ment occurs at that session, either in the act making ap¬ 
propriations for the service of the year, (i Stat. at Large, 
p. 95,) or in any other, to define the number or rank of 
the diplomatic agents of the United States. 

Nevertheless, on the 20th of April 1790, William Short 
was duly commissioned as charge d’affaires in France, 
and William Carmichael in Spain. In each of these cases, 
the designation of the officer was derived from the law of 
nations, and the authority to appoint from the Constitu¬ 
tion. 

Moreover, on the 13th of October, 1789, Gouverneur 
Morris received from the President a mere letter of in- 


11 


structions, authorizing and requiring him to ascertain and 
report the intentions of Great Britain in regard to the 
observance of the late treaty of peace, and the conclusion 
of a treaty of commerce. Appointments of a similar 
character, it will be noticed hereafter, have been made 
under every administration of the Government. 

Subsequently to these three appointments, and at the 
second session of the first Congress, more specific provis¬ 
ion appears on the subject, in the act “ providing the 
means of intercourse between the United States and for¬ 
eign nations,” in substance of the following tenor: 

“•Tile President of the United States is authorized to draw 
from the treasury a sum not exceeding forty thousand dollars 
annually, for the support of such persons as ke shall commission 
t'o serve the United States in foreign parts , and for the expense 
incident to the business in which they are employed: Provided, 
That, exclusive of an outfit, which shall in no case exceed the 
amount of one year’s full salary to the minister plenipotentiary 
or charge des affaires to whom the same may be allowed, the 
President shall not allow to any minister plenipotentiary a 
greater sum than at the rate of nine thousand dollars per annum, 
as a compensation for all his personal services and other expenses ; 
nor a greater sum for the same than four thousand five hundred 
dollars per annum to a charge des affaires ; nor a greater sum 
for the same than one thousand three hundred and fifty dollars 
to the secretary of any plenipotentiary: And provided, also. 
That the President shall account specifically for all such expen¬ 
ditures of the said money as in his judgment can be made 
public,., and also for the amount of such expenditures as he may 
think it advisable not to specify, and cause a regular statement 
and account thereof to be laid before Congress, and also lodged 
in the proper office of the Treasury Department.” (Act of July 
1, 1790, i Stat. at Large, p. 128.) 

This act is the commencement and the foundation of all 


12 


the legislation of Congress on the general subject. It was 
temporary in terms, being for two years only; but at the 
end of that time it was continued in force for one year, 
together with an additional provision in substance as 
follows: 

( ‘ In all cases where any sums have issued, or shall hereafter 
issue, from the treasury, for the purposes of intercourse or treaty 
with foreign nations, in pursuance of any law, the President is 
authorized to cause the same to he duly settled annually with the 
accounting officers of the treasury, in manner following, that is 
to say, by causing the same to he accounted for specifically, in 
all instances wherein the expenditure thereof may in his judg¬ 
ment he made public ; and by making a certificate, or causing 
the Secretary of State to make a certificate, of the amount of 
such expenditures as lie. may think it advisable not to specify; 
and every such certificate shall he deemed a sufficient voucher 
for the sums therein expressed to have been expended/* (Act 
of February 9, 1793,i Stat. at Large, p. 299.) 

At the expiration of the year, the foregoing act was 
continued for another term, with an additional section ap¬ 
propriating one million dollars to defray any expense 
which might be incurred in relation to the intercourse 
between the United States and foreign nations, to be ap¬ 
plied under the direction of the President. (Act of May 
26, 1794, i Stat. at Large, p, 345.) 

In the next Congress, the same act was again contin¬ 
ued with additional appropriations, (Act of May 30, 
1796, i Stat, at Large, p. 487.) 

In the next Congress, another temporary act on the 
subject was passed, repeating in substance the provisions 
of previous acts, so far as they bear on the question of the 
appointment and compensation of ministers and the powers 
of the President. (Act of March 19, 1798, i Stat. at 
Large, p. 541.) 


13 


But the practice of the Government during all this 
time recognised the right and power of the President to 
designate, and, with the consent of the Senate, appoint, 
public ministers of any rank or denomination which the 
public interest might seem to him to require, without 
regard to the fact, that in acts of Congress the only min¬ 
isters named were of two denominations, minister pleni¬ 
potentiary and charge d’affaires. Indeed, many of the 
early appointments are of a title of designation deliberately 
different from those expressly named in the acts of Con¬ 
gress, 

Of these appointments the following examples will suffice 
to prove and illustrate my doctrine: 

On the 21st of February, 1791, David Humphreys was 
duly appointed “minister resident” in Portugal. 

On the 12th of January, 1792, Thomas Pickney was 
duly appointed and commissioned by the statute name of 
“minister plenipotentiary” in Great Britain, 

On the 18th ot March, 1792, William Carmichael and 
William Short were duly appointed and commissioned as 
“commissioners plenipoteniary” for certain negotiations 
with Spain. 

These are cases pregnant with instruction. Their des¬ 
ignations are selected at discretion from the multiplicity 
of names of ministers which the law of nations affords, and, 
in the case of the highest appointment, with judicious 
omission of the mere parade superaddition of “envoy 
extraordinary” to the name of “minister plenipotentiary.” 

One of these appointments has special value as to the 
matter in hand, that of Mr, Humphreys, appointed “min¬ 
ister resident,” while the statute designation was minister 
plenipotentiary. 


14 


All these acts of the Executive, and others of the 
same nature occurring before and since down to the 
present time, are supported by two fundamental princi¬ 
ples, one of public policy, and the other of the Constitu¬ 
tion. 

The Constitution gives to the President “power, by 
and with the advice and consent of the Senate, to make 
treaties.” . No enabling act of Congress is requisite in the 
premises. Whether, when a treaty has been duly made 
and ratified, there is need or not of an act of Congress to 
give effect to any of its stipulations, is another matter, and 
wholly irrelevant to the question of the power to make a 
treaty. That -undeniably belongs to the President and 
Senate. 

The Constitution also declares that the President “shall 
nominate, and by and with the advice and consent of the 
Senate appoint, ambassadors, public ministers, and con¬ 
suls ” I have already said, and I repeat, that these words 
are descriptive of a class existing by the law of nations, and 
they comprehend all which the class comprehends. Ambas¬ 
sador, public minister, signifies all forms or denominations of 
persons employable as intermediaries between our own and 
any other government. Any such intermediary, according 
to the wants of the public service, may be appointed and 
commissioned by the conjoint executive power of the 
United States; and we shall see in the sequel that the 
President may negotiate a treaty through the interven¬ 
tion of a person not commissioned, or intended to be com¬ 
missioned, on a nomination to the Senate. 

All this power, considerations of public policy require 
to be lodged with the Executive; because of the nature of 
diplomatic business, which exacts the use of negotiators, 


15 


single persons to confer with single persons, either at home, 
and more especially in foreign countries. And however 
the various denominations of public ministers may be arti¬ 
ficial, yet, practically, distinctions even of mere dignity, 
or personal relation, are of the most decisive result in hu¬ 
man affairs, and not to be overlooked without prejudice in 
the foreign affairs of the Government; to say nothing of the 
question of access to the sovereign, which, according to 
diplomatic form and usage, depends on the rank of the 
foreign minister. 

At length, in the sixth Congress, and after ten years of 
ad interim legislation on the subject, the general provis¬ 
ions of the previous temporary acts were repeated in a 
permanent form, which thus became the settled general 
statute-idea of the Government. (Act of May 10, 1800, 
ii Stat. at Large, p. 78.) 

No modification of that idea occurred until, in the tenth 
Congressman act was passed, which, in addition to some 
consular provisions not necessary to be considered here, 
contains two important enactments. 

In the first place, instead of a salary of one thousand 
three hundred and fifty dollars for annual compensation of 
u the secretary of any plenipotentiary,” it provides a salary 
of not more than two thousand dollars to “ the secretary 
of any legation or embassy to any foreign country, or sec¬ 
retary of any minister plenipotentiary.” 

Secondly,* it contains a provision to forbid the payment 
of salary to any charge d’affaires or secretary not duly ap¬ 
pointed, in substance as follows: 

“■ To entitle any charge des affaires, or secretary of any legation 
or embassy to any foreign country, or secretary of any minister 
plenipotentiary, to the compensation hereinbefore provided, they 


16 


shall respectively be appointed by the President of the United 
States, by and with the advice and consent of the Senate; but, 
in the recess of the Senate, the President is hereby authorized to 
make such appointments, which shall be submitted to the Senate 
at the next session thereafter for their advice and consent; and 
no compensation shall be allowed to any charge des affaires, or 
any of the secretaries hereinbefore described, who shall not be 
appointed as aforesaid : Provided , That nothing herein contained 
shall be construed to authorize any appointment of a secretary to 
any charge des affaires.” (Act of May 1, 1810, ii Stat. at Large, 

p. 608.) 

Nothing material of pertinent general legislation occurs 
further until the twenty-seventh Congress, when the fol¬ 
lowing law was enacted: 

ce The President of the United States shall not allow to any 
minister resident a greater sum than at the rate of six thousand 
dollars per annum, as a compensation for all his personal ser¬ 
vices and expenses,” with u an outfit which shall in no case 
exceed one year’s full salary of such minister resident.” (Act of 
Aug. 6, 1832, s. 9, v Stat. at Large, p. 525.) 

Here is a maximum limitation by statute of the compen¬ 
sation of a minister resident; but neither this nor any other 
statute enacts that there shall be a public officer denomi¬ 
nated “minister resident.” 

At a very recent day, Congress, justly appreciating the 
inconvenience of having a permanent grade of duly ap¬ 
pointed ministers directly and fully representing the 
country, and yet bearing the name of charg-e d’affaires, 
and so subject to be confounded with consuls, or other 
persons wholly unofficial, upon whom the temporary charge 
of the archives of the legation might fall by reason of the 
death, disability, or absence of the minister,—indicated by 
the language of appropriation the thought or recommen- 


17 


dation of having the commission of minister conferred in 
all eases, instead of that of charge d’affaires, but retaining 
unchanged the salary of the last named grade. (Act of 
March 3, 1853, Session Acts 1852-3, p. 203.) But neither 
did this act create, or profess to create, the office of min¬ 
ister resident. 

It has been the course of legislation for many years 
to specify, in the annual act making appropriations for 
the civil and diplomatic service of the Government, the 
several foreign missions for which appropriation is made; 
and this legislative practice may have led to erroneous 
impressions as to the constitutional relations in this re¬ 
spect of the Executive and of Congress. 

The legislative provisions do not in terms profess to be 
the creation of the offices of minister to Great Britain, to 
France, and to other countries; but only the supply of 
money with which to pay their outfits, salaries, and con¬ 
tingencies. I will show by the legislative history of the 
matter, that it does not in the remotest degree raise any 
implication of these forms of appropriation being intended, 
or in fact operating, as the creations of offices, or as either 
giving power to, or taking it away from, the President and 
Senate. 

Of this form of appropriation, the earliest example which 
occurs is in the fifteenth Congress, the last of the adminis¬ 
tration of Mr. Madison. 

It stands in the act “making appropriation for the sup¬ 
port of government,” in these words: 

“For salaries of the ministers of the United States to London/ 
Paris, St. Petersburg, Bio Janeiro, Stockholm, Madrid, and the 
Hague, and their several secretaries of legation, ■ seventy-seven 
thousand dollars .* ’ 

D—3 


18 


4 4 For outfits of ministers of the United States to London and 
St. Petersburg, eighteen thousand dollars.’’ 

44 For the contingent expenses of the missions aforesaid, ten 
thousand dollars.” 

44 For the contingent expenses of the intercourse between the 
United States and foreign nations, eighty thousand dollars.” 
(Act of April 9, 1818, iii Stat. at Large, p. 422.) 

I quote the provision of the next year, to show the 
whole extent of the innovation, because it contains a clause, 
which then first appears, to legalize : in fits, as follows: 

44 For salaries to the ministers of the United States to London, 
Paris, St. Petersburg, Rio Janeiro, and Madrid, with the sala¬ 
ries of their respective secretaries of legation, and the salaries 
of a charge d’affaires at the Hague and at Stockholm, and for 
the usual alloivance of three months’ salary payable to the min¬ 
ister at Stockholm, payable on his return home, sixty-six thous¬ 
and two hundred and fifty dollars.” 

44 F° r outfit for a minister plenipotentiary at Rio Janeiro 
and Madrid, and also for the charges des affaires at London, 
the Hague, and Stockholm, thirty-one thousand five hundred 
dollars.” 

4 4 For the contingent expenses of the missions aforesaid, ten 
thousand dollars.” 

44 For the contingent expenses of the intercourse between the 
United States and foreign nations, thirty thousand dollars.” 
(Act of March 3, 1819, iii Stat. at Large, p. 501.) 

Now, that all this, and what has followed of the same form 
in subsequent years, is specification of expenditure and ap- 
propriation merely, and not creation of offices, is demon¬ 
strable by inspection of the previous action of the Govern¬ 
ment. 

We have observed that President Washington made ap¬ 
pointments of foreign ministers without reference to desig¬ 
nations of name in acts of Congress, and that the expenses 


19 


of foreign intercourse were in his time provided for by acts 
passed for that special purpose, but in general terms. 

Exceptions to the practice of appropriations of this class, 
in special acts, begin to appear in the time of Mr. John 
Adams. 

The act making appropriations for the support of gov¬ 
ernment passed March 3, 1797, supplies a deficiency in the 
previous special appropriation for the year, ma'de by the 
act 11 providing the means of intercourse between the United 
States and foreign nations.” (i Stat. at Large, .p. 500.) 

An act of July 10, 1797, making additional appropriations 
for the support of government, contains an item u for de¬ 
fraying the expenses of foreign intercourse beyond the ap¬ 
propriations heretofore authorized by law.” (i Stat. at 
Large, page 535.) 

The ensuing year appropriations under this head were 
made by a special act hereinbefore cited in another relation, 

41 providing the means of intercourse between the United 
States and foreign nations.” (Act of March 19, 1798, i 
Stat. at Large, p. 541.) 

The year afterwards, an additional appropriation is made 
for the expenses of intercourse with foreign nations, in a 
general Appropriation act. (Act of March 2, 1799, i Stat. 
at Large, p. 723.) 

A similar provision is - found in the acts making general 
appropriations for both sessions of the next Congress. (Act 
of May 7, 1800, ii Stat. at Large, p. 66, and of March 3, 
1801, ii Stat. at Large, p. 120.) 

These acts bring us to the close of the administration of 
Mr. Adams; and it is to be remembered that, during his 
presidency, we had not only the ordinary missions, of which 
no specific mention comes up in any of the acts, but also 


20 


two very important special missions, in like manner un¬ 
mentioned in any act, namely, the appointment of John 
Marshall, Elbridge Gerry, and Charles C. Pinckney, as 
ministers extraordinary to France, in 1797, and that in 
1799, of a similar special mission to the same country, com¬ 
posed of Oliver Ellsworth, William Y. Murray, and William 
R. Davie. 

We come now to the administration of Mr. Jefferson, 
throughout which the ordinary course of legislation in this 
matter is uniform, namely, the insertion in the annual ap¬ 
propriation act, “for the support of the government,” of 
an item appropriating so much “for the expenses of inter¬ 
course with foreign nations.” Just those words, and nothing 
more, disposed of the whole question during the time of 
Mr. Jefferson. (See act of May 1, 1802, ii Stat. at Large, 
p. 188; act of March 2, 1803, ibid., p. 214; act of March 
14, 1804, ibid., p. 269 ; act of March 1, 1805, ibid., p. 321; 
act of April 18, 1806, ibid., p. 388; act of March 3, 1807, 
ibid., p. 436; act of February 10, 1808, ibid., p. 466; act 
of February 17, 1809, ibid., p. 524.) 

We then reach the administration of Mr. Madison. 
At first, the practice of the previous administration in this 
respect was continued; for in the three sessions of the 
eleventh Congress, and in both sessions of the twelfth Con¬ 
gress, the same form recurs, of appropriations in the gene¬ 
ral appropriation act for the support of Government, of so 
much “for expenses of intercourse with foreign nations.” 
(See act of February 26, 1810, ii Stat. at Large, p. 562; 
act of February 20, 1811, ibid., p. 647; act of February 
26, 1812, ibid., p. 690; act of March 3, 1813, ibid., p. 829.) 

In the next Congress, a slight change appears. Instead 
of the previous most general expression,-—“ for expenses of 


21 


intercourse with foreign nations,”—the words are: u for the 
salaries, allowances, and contingent expenses of ministers 
to foreign nations and of secretaries of legation.’” (Act of 
March 24, 1814, iii Stat. at Large, p. 111.) The same 
words appear in the act of the next year, (act of February 
16, 1815, ibid., p. 211); and the next, (act of April 16, 
1816, ibid., p. 283); and the next, (act of March 3, 1817, 
ibid., p. 358); and then we come to the act above cited, 
which begins the series of acts in which the several exist-, 
ing or anticipated missions are introduced by name. 

It is impossible to believe or imagine that these four 
Presidents, Washington, John Adams, Jefferson, and Madi¬ 
son, and the men who participated with them in the con¬ 
duct of public affairs, emphatically the founders of this 
Government, did not understand this thing, or, understand¬ 
ing it, failed to legislate therein in conformity with the 
Constitution. None of the statesmen of that whole gene¬ 
ration looked to an act of Congress for the creation of the 
office of “public minister.” Nor is anything to the con¬ 
trary inferable from assumed differences in constitutional 
theory on the part of these several Presidents. For Mr. 
Jefferson was the Secretary of State under whom occurred 
the leading cases of the administration of President Wash¬ 
ington; and it is in the administration of President Jeffer¬ 
son, with Mr. Madison as Secretary of State, that the very 
general form of the appropriation most emphatically nega- 
' tives the supposition of the office of “public minister” 
being the legislative creation of Congress. 

Nevertheless, in the administrations of Presidents Jef¬ 
ferson and Madison, ordinary ministers continued to be 
appointed and changed, as in the previous administrations 
of Presidents Washington and John Adams; and equally 


22 


signal instances of important special appointments occur, 
as in the case of the commissioners of Ghent. 

Meanwhile special provision had been made for several 
cases of diplomatic intercourse, which afford apt illustra¬ 
tion of the policy and theory of the Government. 

In the time of Mr. Jefferson, there were two very 
significant acts of this character : one, that of April 3, 
1802, making appropriation for defraying the expenses of 
a particular negotiation, “when the President of the 
United States shall deem it expedient to commence such 
negotiation,” (ii Stat. at Large, p. 139); and that of Feb¬ 
ruary 26, 1803, which appropriates the sum of two million 
dollars, u for the purpose of defraying any extraordinary 
expense in the intercourse between the United States and 
foreign nations,” (ii Stat. at Large, p. 202); and which last 
provision related to the important negotiations of that day 
with France. 

Next in order of date and legislative interest is the 
act of May 4, 1828, u making appropriations for carrying 
into effect the appointment of a mission to the Congress 
of Panama.” This act provides for the outfits and salaries 
of two envoys extraordinary and ministers plenipoten¬ 
tiary, and secretary to the mission to the proposed Con¬ 
gress, (iv Stat. at Large, p. 158.) Considering that the 
President has by the Constitution power to appoint diplo¬ 
matic ministers, and that the general tenor of legislation 
is in that sense, we may reasonably regard the language 
of the act establishing this mission as the supply of means 
only, or at most as recommendatory; and such, we shall 
see, was the view entertained of it by President John Q. 
Adams, by the Senate, and by Congress. 

Corresponding to this idea is' the language of one of the 


23 


sections of the important act passed at the close of the 
twenty-fifth Congress, in apprehension of imminent hos¬ 
tilities with Great Britain, which section makes appropria¬ 
tion u for outfit and salary of a special minister to Great 
Britain, provided the President of the United States shall 
deem it expedient to appoint the same.” (Act of March 3, 
1839, s. 6 , y Stat. at Large, p. 336.) 

Not long afterwards, in the twenty-seventh Congress; 
an act placed money at the disposal of the President, to 
enable him to establish the future commercial relations 
between the United States and the Chinese Empire on 
terms of national equal reciprocity; providing only “that 
the annual compensation to any one person employed under 
this act shall not exceed the sum of nine thousand dollars 
exclusive of outfit;” and “that no agent shall be sent by 
virtue of this act unless he shall have been appointed by 
and with the advice and consent of the Senate.” (Act of 
March 3, 1843, v Stat. at Large, p. 624.) 

Under this act, the President appointed a person as 
negotiator, with commissions as commissioner and as minis¬ 
ter plenipotentiary, and another as secretary of legation; 
since which time annual appropriation has been made for 
the compensation of a diplomatic commissioner, and a sec¬ 
retary-interpreter. 

In recent acts, there is appropriation for the salary of 
a commissioner, who has diplomatic functions, to reside at 
the Sandwich Islands; but there is no act creating that 
office. 

There is a long series of special acts appertaining to 
our relations with the various Mohammedan states of the 
Mediterranean and of the Indian seas, and to some^of the 
minor states of Asia. Some of these will pass under re- 


24 


view in treating of the appropriations for consuls, through 
whom for many years our permanent relations with the 
Barbary and other Mohammedan states have been main¬ 
tained, although treaties were negotiated with them by 
special commissioners. None of these acts vary the con¬ 
clusions of legal doctrine derived from other acts of Con¬ 
gress. 

In the management, however, of the public business 
regarding the class of states out of Christendom, we find 
a body of very strong facts in illustration of the power of 
the Executive to negotiate. 

President Washington granted to David Humphreys, on 
the 2d of March, 1793, without the previous concurrence 
of the Senate, a commission as commissioner plenipoten¬ 
tiary to treat with Algiers. 

Passing over intermediate incidents of the same nature, 
we come to the case of Charles Rhind, David Offley, and 
Com. James Biddle, who, on the 12th of September, 1829, 
were commissioned by President Jackson as joint and sev¬ 
eral ‘Commissioners of the United States” to negotiate, 
and did negotiate the existing treaty between the United 
States and Turkey. 

The same President, on the 26th of January, 1832, ap¬ 
pointed Edmund Roberts as “commissioner of the United 
States” to negotiate treaties with the governments of Co¬ 
chin China and Siam; the result of which was the existing 
conventions with Muscat and Siam. 

On the 16th of August, 1849, Joseph Balestier received 
from President Fillmore the appointment of “special agent 
of the United States” to Cochin China and other parts of 
southeastern Asia; out of which commission came our 
treaty with Borneo. 


25 


In conclusion of these precedents, we have the late case 
of the appointment of Com. Matthew C. Perry, under com¬ 
mission from President Fillmore of the 13th of November, 
1852, to negotiate with Japan. 

’We have modern examples, indeed, of commissions of 
the same nature for negotiations with some of the nations 
of Christendom, among which the following may be noted: 

On the 3d of May, 1838, Nathaniel Niles was commis¬ 
sioned by President Van Buren as “ special agent of the 
United States” to the kingdom of Sardinia, and as such 
negotiated our treaty with Sardinia. 

On the 28th of March, 1846, A. Dudley Mann was ap¬ 
pointed by President Polk “special agent of the United 
States” to treat with sundry States of Germany, and as 
such agent he negotiated the treaty with Hanover. 

Now, in the case of neither of these appointments, . 
covering as they did important negotiations in Europe as 
well as in Asia, was there any authorizing act of Congress, 
any preparatory specific appropriation, nor even a com¬ 
mission by and with the advice and consent of the Senate. 
In each instance, the successive Presidents acted, as did the 
earlier Presidents in consimili casu , in virtue of their con¬ 
stitutional power “ to make treaties,” that is, to negotiate 
and prepare them for the consideration of the Senate, just 
as in virtue of direct authority of the Constitution, and 
without the aid of any mere enabling statute, he has power 
to grant pardons for offences against the United States. 

A flood of light is thrown on this whole subject by the 
proceedings and discussion in the Senate, and the subse¬ 
quent action of both Houses, on occasion of the nomina¬ 
tion of the ministers to the Congress of Panama. (See 
Senate Exec. Journ , vol. iii, pp. 457, 474, 516, 518.) 

D—4 


26 


President John Q. Adams, in communicating these nom¬ 
inations to the Senate, said by message, that, although he 
deemed the having the United States represented at that 
Congress was a measure within the constitutional compe¬ 
tency of the Executive, yet he had not thought proper to 
take any step in it, before ascertaining that his opinion of 
its expediency would concur with that of both branches of 
the legislature, first by the decision of the Senate upon the 
nominations to be laid before them, and secondly, by the 
sanction of both Houses to the appropriations, without 
which it could not be carried into due effect. 

Upon these nominations there ensued much debate in 
executive session of the Senate, terminating in the confirm¬ 
ation of the nominations, and the virtual sanction of the 
President’s opinion and recommendation. 

The views of the minority appear in the report of the 
Committee on Foreign Relations, which concluded with the 
following resolution: 

“ Resolved, That it is not expedient at this time for the United 
States to send any ministers to the Congress of American Ra¬ 
tions assembled at Panama;” 

which resolution was rejected by a vote of 19 to 24; and 
in a series of resolutions offered by Mr. Tan Buren, and 
also rejected by the same vote, but one of which, in the 
following words, is pertinent to the present question: 

£C j Resolved, That the Constitution of the United States, in 
authorizing the President of the United States to nominate, and 
by and with the advice and consent of the Senate, appoint c am¬ 
bassadors (and) other public ministers/ authorizes the nomina¬ 
tion and appointment to offices of a diplomatic character only, 
existing by virtue of international laws, and does not authorize 
the nomination and appointment, under the name of £ ministers ’ 


27 


of representatives to an assembly of nations, like the proposed 
Congress of Panama, who, from the nature of their appoint¬ 
ment, must he mere deputies, unknown to the law of nations, 
and without diplomatic character or privilege/' 

Now, without going out of our way to discuss the expe¬ 
diency of the mission to the Congress of Panama, or the 
question whether the Federal Government could constitu¬ 
tionally, even with full consent and concurrence of the 
Congress of the United States, of the President, and of the 
Senate, be represented in such a congress, it is only mate¬ 
rial here to remark, that the whole argument on both sides 
concedes that, if the members of the congress could be 
rightfully considered as “public ministers - with diplomatic 
functions and rights, under the law of nations, then the 
appointment of them would fall within the proper consti¬ 
tutional functions of the President and the Senate. The 
Constitution, Mr. Van Buren admits, authorizes the nomi¬ 
nation and appointment to offices of a diplomatic character, 
existing by virtrce of international laivs , that is, not depend¬ 
ing for existence on acts of Congress. 

Unless we took note of these proceedings, and of their 
time and character, the act of Congress making appropria¬ 
tion for the mission might seem to constitute a source of 
authority to the President in the premises. But the con¬ 
trary is the fact. The resolution of the Senate, advising 
and consenting to the appointment of Richard C. Ander¬ 
son and John Sergeant as ministers to the Congress of Pa : 
nama, and William B. Rochester as secretary of the mis¬ 
sion, was adopted in that body QU the 14th of March, 1826. 
Thereupon the offices were filled, and the officers existed, 
as being, in the judgment of a majority of the Senate, 
“ public ministers”' by the lsrw of nations, and if so, then, 
in the judgment of all, ministers of the United States by 


28 


the Constitution. No legislative act of Congress had cre¬ 
ated the offices, or defined the rank and functions of the 
officers. But thereafter, by act of May 4th, 1826, Con¬ 
gress made appropriation for the outfit and salary of the 
ministers and salary of the secretary, and contingencies of 
the mission; and thus accepted and recognised the officers, 
already in existence, as lawfully existing and duly ap¬ 
pointed officers of the United States. 

And that whatever doubts Mr. Van Buren had on the 
subject were, as the tenor of his resolution implies, not 
doubts as to the power of the Executive to appoint envoys 
extraordinary for a new mission, and a secretary of lega¬ 
tion, without any previous enabling act of Congress, but 
whether the mission to Panama was in fact as well as 
name, a diplomatic mission within the scope of the powers 
of the United States as a government,—is proved by his 
own subsequent action; for the commission appointing 
James Biddle, Charles Bhind, and David Offley, joint and 
several plenipotentiary commissioners to the Ottoman 
Porte, was under the direction of Mr. Yan Buren as Secre¬ 
tary of State; and that commission being issued not only 
without special appropriation or other authorizing legisla¬ 
tive act, express or implied, but without concurrence of 
the Senate. 

On this full retrospect of the entire legislation and 
executive practice of the Government, it is thus seen that 
there is no law, which prescribes the power, the name, the 
rank, the number, the time, or the place of our public 
ministers; that when acts of Congress mention cither of 
those incidents, it is only to make appropriations, or at 
most to offer suggestive recommendations. 

Of course it became the established rule for the Presi- 


29 


dent, by and with the advice and consent of the Senate, 
and according to his and their judgment, to appoint such 
ministers, with such powers, at such times, to such places, as 
the public interest might seem to demand, with no limita¬ 
tion save in the fact of there being a defined salary for four 
only of the denominations of public ministers;—and then, 
either before or after the appointment, presenting estimates 
for the requisite expenditure. At first, as we have per¬ 
ceived, appropriation was made in a gross sum to cover 
all the expenses of foreign intercourse, including salaries 
of ministers. Afterwards, and since it grew to be custom¬ 
ary to make appropriations more specific, the practice has 
been to make estimates and to pass appropriations for the 
aggregate salaries and outfits, first of unenumerated and 
then of enumerated ministers, secretaries of legation, and 
charges d’affaires, with specific items of appropriations for 
contingent expenses of missions abroad and of foreign 
intercourse. 

As the President appointed negotiating agents of him¬ 
self, and ministers proper with consultation of the Senate 
alone, so he reduced or discontinued a mission in his dis¬ 
cretion; and his power to make this change is impliedly 
recognised by the express terms of act of Congress. (Act 
of May 18, 1842, No. 195, v. Stat. at Large, p. 486.) 

The President’s power of appointment is practically 
limited, to a certain degree, by the necessity of obtaining 
appropriations from Congress to defray the expenses of a 
mission; but this limitation is in effect removed by the 
appropriation of a sum of money for the contingent ex¬ 
penses of foreign intercourse, on which the President may 
draw for an appointment publicly made, or even for a 
secret appointment, under the power of the President to 


30 


file a certificate of any sum expended without explanation 
of the object of expenditure. Besides which, an officer 
may lawfully be, and' occasionally is, appointed, either a 
statute officer or other, without any existing provision for 
his compensation: which, if he be lawfully appointed, 
creates a valid debt against the Government. 

In regard to the possible varieties of diplomatic agents, 
we have in the Constitution “ambassadors” and u public 
minister's,'” which includes all the contents of the class. 
That construction of the phrase, in the clause of the Consti¬ 
tution defining the power of appointments, is confirmed by 
the use of the same words in a subsequent clause, which 
empowers the President to “receive ambassadors and other 
public ministers, 3 ’—meaning of course all possible diplo¬ 
matic agents which any foreign power may accredit to-the 
United States; as also where the same expressions are 
employed in the clause defining the jurisdiction of the 
courts of the United States. 

In the acts of Congress, we have mention of ministers 
plenipotentiary, envoys extraordinary, special ministers, 
commissioners, ministers resident, charges d’affaires, secre¬ 
taries of a plenipotentiary, and secretaries of embassy and 
legation; and also “agents^’ so called, who were in fact 
ministers with special powers. But these statute designa¬ 
tions are not exclusive. At a time when neither minister 
resident nor commissioner plenipotentiary had ever been 
mentioned in the statutes, the President, with concurrence 
of the Senate, appointed such officers; and the appoint¬ 
ments were constitutional and valid, notwithstanding that 
certain other diplomatic officers, and those only, were 
mentioned in acts of Congress. 

In respect of their functions as related to their titles, 


31 


the diplomatic agents of the United States spoken of in 
the acts of Congress are not reducible to any uniform rule 
of designation and consequent rank. In the different 
statutes, we have charges d’affaires, of permanent station; 
officers of each name with ail the powers usually accorded 
to a minister plenipotentiary; commissioners accredited to 
a court, as in the case of the minister to the Sandwich 
Islands, and envoys extraordinary not. accredited to any 
court, as in "the case of the ministers to the Congress of 
Panama 

This Government has never made the appointment of 
u ambassador;” but the Constitution expressly authorizes it 
to be done; and the act of Congress, which provides for a 
secretary of legation or “ embassy,” evidently points to the 
same fact. We are not to assume that the omission to 
make this appointment has arisen from any doubt of the 
adaptation of the rank of “ ambassador” to our institutions. 
If, by usage in Europe, the ambassador enjoys higher privi¬ 
leges because of his pretended or putative direct relation 
to the sovereign, we may with right demand the conces¬ 
sion of those privileges: for the representative of the 
popular sovereignty of a republic not less than of the regal 
or imperial sovereignty of a monarchy. The United 
States are not bound by the agreements in this respect, 
which this or that occasional combination of European 
governments may choose to make. We acquiesce in 
what is a matter of no account, the classification of min¬ 
isters arranged at the congresses of Vienna and Aix-la- 
Chapelle, which puts ambassadors, legates, and nuncios, in 
the first rank; envoys extraordinary and internuncios, in 
the second; ministers resident in the third, and charges 
d’affaires at the bottom of the scale, (Martens, Guide Diplo- 


32 


matique, tom. i, p. 1, ch. 3); but in doing this, we relin¬ 
quish no rights. Regulations which we did not participate 
in, we accept or not as we please. Of course, we can by 
no means admit that ambassadors, and they only, have a 
representative character. Whatever in Europe may be the 
arbitrarily assumed relation of any foreign minister to the 
sovereign of his country, all ministers, duly appointed and 
commissioned by the constitutional authorities, are alike 
the direct “representatives,” as they are aptly termed in 
the statuie before me, of the United States. 

The republic of the United Provinces has had its am¬ 
bassadors in the courts and congresses of Europe; so may 
they be had by the republic of the United States. 

In truth, neither the power nor the functions of a public 
minister with us have the least regard to his title. That, 
and the salary, are questions of dignity only. None of our 
ministers have in strictness full powers, because they are 
confined by their instructions, and still more by the limited 
powers of the Federal Government, from which ensues the 
necessity of limited powers to each one of its functionaries. 
Within the range of constitutional authority, they have 
such powers as the President sees fit to grant, and no more. 
On the other hand, whatever their title of dignity, and 
whatever the salary allowed to support that more or less of 
dignity, they are, each and all, in virtue of their commis- 
missions under the great seal of the United States, the un¬ 
questionable representatives pro tanto of the sovereignty of 
the United States. 

To complete the statement of existing facts and legisla¬ 
tion as preliminary to the consideration of the new pro¬ 
visions of law presented to me for construction, there is 
one remaining topic to be discussed, and that is, the rela¬ 
tion of diplomatic appointments to the Senate. 


33 


That a diplomatic or any other commission, lawfully 
granted by the President alone in the recess of the Senate, 
is just as valid as if granted on the approval of the Senate, 
provided it be the case of a vacancy existing in the recess, 
no man doubts. I myself held such a commission, which 
was not only subject to the question formerly entertained, 
but now obsolete, of whether a vacancy can only exist as 
the consequence of an office once filled, but to the special 
question raised by the statute, which provided that the 
commission should not be held by any person unless ap¬ 
pointed by and with the advice and consent of the Senate. 

It was properly decided in this case, by the subsequent 
vote of the Senate confirming the appointment, and the 
acts performed in virtue of it, that the proviso was nuga¬ 
tory, because in derogation of the Constitution. But a 
larger inquiry is involved in such a case. Does the 
vacancy-clause of the Constitution apply to diplomatic 
ministers? 

It is the undeniable fact tnat “public ministers,” 
as a class , are created by the Constitution and the law of 
nations, not by act of Congress. No act of Congress 
created the offices of minister to Great Britain, France, 
Spain, Portugal, the United Provinces, and other countries 
to which ministers were sent by President Washington. 
They were not even mentioned in acts of appropriation. 
And thoughtful men have held that wherever no “ambas¬ 
sador ” or other “public minister” exists at the moment, and 
the exigency for one springs up, there is a “vacancy” in the 
true spirit of the Constitution. 

It is quite apparent that imperative emergencies may 
arise during the recess of the Senate, which call for the ap¬ 
pointment of a diplomatic agent in a perfectly new case ; 

D—5 


; 34 


as if \ in flagranti hello, there be propositions of peace, 
which if imports the public interest in the highest degree 
to entertain and to endeavor to bring to a prompt 'cdnciii- 
sion, and which -demand instant action. Cannot the Pres¬ 
ident in gtthh 'feahe'appoint a-ministerial hegotiator?' 

I conceive that undoubtedly he may; and that the only 
questions wiH .then be, first; of the salary of such minister, 
and, secondly, of the titular designation he is to receive. 
And to this effect, it is believed,“has been the uniform, 
practice of the Government. Which is confirmed by the 
consideration that, as a general rule, the cc full power,’ 7 in 
virtue of which the agent of the United States negotiates 
and signs a treaty, which is the most important and solemn 
act of diplomatic service, is conferred specially in each 
case; end may be given to a special minister, to the resi¬ 
dent minister, to the minister resident at some other court, 
to a justice of the Supreme Court, to one of the heads of 
department, to a consul, to an officer of the navy, to a 
simple “citizen of:the United States;” or to a special agent 
so called, not a commissioned officer of the United States; 
as in the case of Mr. Morris and of others selected at 
the mere discretion of the President. (See, for example 
of each, treaty with Great Britain of 1794, convention with 
France of 1800, treaty with Sweden of 1816, treaty with 
Spain of 1819, treaty with Greece, treaty with the Porte, 
■treaty with Ecuador, treaty with Sardinia, treaty with 
Hanover.) 

We have seen how numerous are the cases of nego¬ 
tiating u commissioners” appointed in the recess of the 
Senate. Cases are not wanting of the appointment, during 
the recess, of diplomatic officers of recognised statute de¬ 
nominations, but to places where previously there had 


35 


been no office of the particular rank. Thus it was in the .... 
case of Bailie Peyton, the first envoy extraordinary and, 
minister plenipotentiary to Chile* appointed August-9th r/ 
1845; -and Fletcher Webster, appointed April 24th, 18.43, 
the first secretary of legation to China. 

. As to provisional .charges d’affaires, the cases are 
numerous of their appointment by the President during 
the recess, or by a retiring .minister, with the President’s., 
approbation. There is a printed list of numerous appoint- , 
meats of this description, occurring between the years 
178.9 and 1827, contained in. a report of that year rendered 
by the Secretary of State (Mr. Clay) in answer to a reso¬ 
lution of the House of Representatives, in which Mr. Clay 
says: u So important is it regarded to preserve without 
interruption the diplomatic intercourse between nations 
which ‘are mutually represented by ministers, that, upon 
the death of a minister, the secretary of legation becomes, , 
by established usage, ipso fact') charge d’affaires, until his. 
Government is advised and provides for the, event.” And 
he adds,: that the authority for.such appointments is believed 
16 be furnished by the Constitution of the United States and 
the public law and . usage of nations. (Executive docu¬ 
ments, 2d session 19th Congress,. No. 73.) 

it would have been impossible for me, without thus re¬ 
viewing the past diplomatic legislation and .action of the 
Government, and collecting the results in a connected view, 
to make present clearly to my own mind the true relation 
of the new laws, to those which have gone before them. I 
come now to the act submitted to me for examination. 

Thk act, under date of March 1* 1855, contains numer¬ 
ous provisions regarding the diplomatic and consular sys¬ 
tems of the United States, many of them of mere incidental 




36 


regulation, and others of more fundamental legislation ; 
and the first pertinent question, which arises on it, is of its 
general effect and operation as a statute. 

The commencing section of the act provides that “from 
and after the 30th day of June next, the President of the 
United States shall, by and with the advice and consent of 
the Senate, appoint representatives of the grade of envoys 
extraordinary and ministers plenipotentiary,” with a spe¬ 
cified annual compensation for each respectively, “ to the 
following countries,” namely, Great Britain, France, Spain, 
Russia, Austria, Switzerland, Rome, Naples, Sardinia, Bel- 
gium, Holland, Portugal, Denmark, Sweden, Turkey, 
China, Brazil, Peru, Chili, Argentine Republic, New Gra¬ 
nada, Bolivia, Ecuador, Venezuela, Guatemala, Nicaragua, 
and Mexico. 

The second and third sections, each enacting in the 
same language, that is, from and after the day mentioned, 
the President shall, by and with the advice and consent of 
the Senate, appoint,—provides for “ secretaries of legation” 
to each of the countries previously named, except China 
and Turkey, for one of which it provides an “interpreter,” 
and for the other a “dragoman;” and also provides for a 
commissioner to the Sandwich Islands. 

The tenor of these three sections of the act is to pro¬ 
vide compensation for “envoys extraordinary and min¬ 
isters plenipotentiary,” not only to places where we now 
have such a minister, but at others also, where the present 
officer is a “ minister resident,” and to give to each a “sec¬ 
retary of legation.” 

In regard to the form of compensation, the first section 
applicable to ministers employs the words: “who shall 
receive an annual compensation for their services not ex- 


37 


ceeding the amount specified herein for each,”—-and annexes 
the amount to the name of the country, thus: ‘‘Great 
Britain, seventeen thousand five hundred dollarsand the 
second section employs the same precise language and 
form of enactment regarding secretaries of legation. 

The sixth, seventh, and eighth sections provide that no 
one of the above officers shall “be entitled to compensa¬ 
tion until he shall have reached his post, and entered upon 
his official duties that his compensation “ shall cease on 
the day that his successor shall enter upon the duties of 
his office;” and that “ his salary shall not be allowed him” 
if he be absent from the country to which he is accredited 
more than ten days, without leave previously obtained 
from the President; and the twenty-sixth section repeals 
all provisions of statute authorizing the payment of outfit 
and infit, clerk hire and office rent, to any minister of the 
United States. 

In the body of the act is one provision in regard to 
appointments, which, like some other things in the act, must 
be deemed directory or recommendatory only, and not 
mandatory :—that, namely, which enacts that to these offices, 
“the President shall appoint no other than citizens of the 
United States, who are residents thereof, or abroad in the 
employment of the Government at the time of their ap¬ 
pointment.” The limit of the range of selection for the 
appointment of constitutional officers depends on the Con¬ 
stitution. Congress may refuse to make appropriations 
to pay a person unless appointed from this or that cate¬ 
gory; but the President may, in my judgment, employ him, 
if the public interest requires it, whether he be a citizen 
or not, and whether or not at the time of appointment he 
be actually within the United States. 


38 


The concluding section of the act, the twenty-seventh, 
is in these words: “The provisions of this act to take effect . 
from and after the 30th of June next, any law or laws of 
t ie United States to the contrary notwithstanding.” 

Now, in seeking out the proper construction of these 
provisions, it is my plain duty, independently of my know¬ 
ledge of the laudable purposes in which the act originated, , 
to inquire in, good faith what is its legal intendment as- it 
stands on the statute book. ' 

As the act does not contain any-general repealing words, ; 
either at its commencement or its end, and as the conclud¬ 
ing section merely provides that the present ,act shall take 
effect on a given day notwithstanding any other law,=— 
which it would have done without that clause,—it becomes 
a very serious question, whether the act does in fact repeal. 
any provision of law except such as it repeals specially, 
and whether its main effect be not merely the enactment 
of new regulations, particularly on the subject of compen¬ 
sation. For the important provisions of the act are affirm-, 
ative only *, and, as a general rule, affirmative statutes do 
not repeal anything by implication. (Dwarris-on Statutes, 
p. 474.) This point'is not essential to be considered in 
disposing of the present inquiry; but will be, in disposing 
of the several questions appertaining to consuls, vice con¬ 
suls, and commercial or consular agents. 

Your first inquiry is a double one ;-—1. Gan The Presi¬ 
dent, without the previous advice and consent of the Senate, 
appoint envoys extraordinary in place of, the present min¬ 
isters resident?. 2, Gan, he. so appoint a secretary of lega¬ 
tion to each of them? v 

The solution of this doubt demands careful reflection. 

The enactment-phrase of the act is: From and after & 


certain day, the President shall, by and with the advice 
and consent of the Senate^ appoint. 

Now, it is obvious to say, in the first place,- that the 
words “ by and with the advice and consent of the Senate,’" 
here inserted, do not limit or impair any power of appoint¬ 
ment or of nominal designation, which the President pos¬ 
sesses under the Constitution. For instance, it is not in 
the power of Congress,' by whatever terms of enactment, 
to take away any such power as the Constitution may give 
him, to change' the mere title of a minister, or to make 
temperary appointments during the recess of the Senate. 
All expressions in a statute are to be so construed as to, 
give them constitutional force if it be possible, ut res maejis 
valeat- quam per eat. Here the words employed have a 
meaning well settled by their statute-use in other cases; 
which is, to negative the idea that any of the ministers men¬ 
tioned ill the act are intended'to be such inferior officers; 
the appointment of which may be vested by Congress “in 
the President alone, in the courts of law, or in the heads 
of Departments.” 

In the second place, the words-from and after” seem 
obviously to intend only to denote the day, when the effect 
of the act, whatever that effect is determined to be, shall 
commence. 

In the third place, the word “shall” must be construed 
to signify “may;” for Congress cannot by law constitu¬ 
tionally require the President to make removals or ap¬ 
pointments of public ministers on a given day, or to make 
such appointments of a prescribed rank, or to make or not 
make them at this or that place. He, with the advice of 
the Senate, enters into treaties; he, with the advice of the 
Senate, appoints ambassadors and other public ministers. 



40 


It is a constitutional power to appoint to a constitutional 
office, not a statute power nor a statute office. Like the 
power to pardon, it is not limitable by Congress; which 
can as well say that the President shall pardon all offences 
of a certain denomination and no others, as to say that he 
shall appoint “public ministers” of the grade of “envoy 
extraordinary” and no others. He may with advice of the 
Senate appoint an ambassador, a commissioner plenipo¬ 
tentiary, a minister resident, a charge d’affaires, a special 
agent, a secretary of embassy, a secretary of a minister 
plenipotentiary, notwithstanding the language of this act, 
just as, in past times, he appointed a minister resident, a 
charge d’affaires, a commissioner plenipotentiary, without, 
nay, in seeming contradiction with, authorizing provisions 
of acts of Congress. And, as we are not by construction 
to assume that a legislative act intends any unconstitutional 
thing when its words can be so construed as to mean a 
constitutional thing, we are therefore not to read this act 
as requiring the President to appoint and maintain a minis¬ 
ter of the rank of envoy extraordinary at the courts of 
London, Paris, St. Petersburg, Madrid, Mexico, Copenhagen, 
regardless of what may, in his judgment and. that of the 
Senate, be the necessities or interests of the public service; 
nor to read it as forbidding him to leave either of those 
legations, or any other, in the hands of a mere charge 
-d’affaires. 

Hay, if this unconstitutionality of legislation could be 
intended as the purpose of the act, then it is not couched 
in apt language to convey such intendment. It contains 
no phrase or word of universal inclusion or universal ex¬ 
clusion of rank, or even of perpetuity or continuity of 
rank or appointment. It says that the President shall, on 


41 


and after a certain day, appoint a certain minister; it does 
not say lie shall do this continually thereafter and at all 
times. It does not say there shall at all times be a minister 
of the United States at London of a certain grade, and 
never a minister of any other grade. And surely, if these 
things had been the intention of the act, it would have let 
fall some expression, or at least one word, declaring or 
implying such purpose of universality, of constancy, of 
perpetuity, of general inclusion or general exclusion. 

No such expression occurring in the context, we are 
not forced, in the construction of the word “ shall” to re¬ 
ject its apparent meaning by reason of its unconstitution¬ 
ally. We may stand on the language of the act, what it 
omits to say as well as what it says, and conclude that 
“shall” was not placed here as a word of command. 

For it is unreasonable to presume in any circumstances, 
and especially unreasonable to presume on the strength of 
a mere circumstantial and auxiliary verb, that Congress 
intended to enact what is unreasonable; as it would be to 
say,—There shall at all times be a minister of a prescribed 
grade at such a court, regardless of contingencies of nego¬ 
tiation and of public honor, which may happen to forbid 
the appointment of a full minister in a given case, and re¬ 
quire that the legation be left in the hands of a charge 
d’affaires, or even that all diplomatic relations be sus¬ 
pended ; contingencies which have actually occurred, and 
may occur again, in our relations with Great Britain, with 
France, with Spain, and with the Mexican republic. Sup¬ 
pose that a foreign government refuses to receive a minis¬ 
ter from the United States: must the President nevertheless 
appoint one? Or suppose war declared by or against us : 
must we nevertheless have a minister in the country with 
D—6 


42 


which we are at war? Clearly not. Therefore, “shall,” 
in this context, affirms only, it does not command. 

These conclusions conform to settled rules of statutory 
construction, according to which “shall” and “may” are 
convertible words, and either of them represents the other, 
in obedience to the context, the general sense of the stat¬ 
ute, and its relation to pre-existing law. (Dwarris on 
Statutes, pp. 474, 604.) 

This reasonable construction of the word “shall” is 
confirmed by the tenor and phraseology of a section of the 
act of the same session of Congress making appropriations 
for the civil and diplomatic service, (the 3d,) which enacts 
that the new salaries of envoys extraordinary may, on the 
day when the new provisions take effect, be allowed “to such 
as may be in office on that day without reappointment /” 
which is beyond all cavil equivalent to saying that it was 
not the intention of the law to require reappointments on 
that day; for, otherwise, the expression quoted, nay, the 
whole provision, is quite nugatory, because of impossible 
application. 

The same section of the civil and diplomatic act contains 
another clause which leads to a like conclusion. It is in 
these words: “Nor shall such envoys extraordinary and 
ministers plenipotentiary be required to take with them 
secretaries of legation, unless they should be allowed by 
the President.” This provision is very inaccurately drawn 
up, because the word “such” cannot by possibility refer, 
as the context and grammar demand that it should, to the 
class of envoys previously mentioned in the section, that 
is, the envoys now in office, but, to have any sense at all, 
must refer to the new class of envoys of whom the section 
had not previously made mention. What it means to say 


43 


is, that the new law must not be understood to require the 
President to appoint secretaries of legation. 

It is further to be observed, that there is no phrase of 
the act, except this word u shall,” which professedly, or by 
implication, undertakes to curtail the absolute discretion at 
all times exercised by the President, in concurrence with 
the Senate, to appoint a public minister of such de¬ 
gree as he and they might please for any particular mis¬ 
sion, or not to appoint any. Whatever discretionary 
power in that respect the President had before the enact¬ 
ment of this law, he has now. It could not be taken 
from him; for he holds it under the Constitution. 

Thus we of necessity reach the conclusion, that the true 
and only effect of the act in this relation, is to say, that if, 
and whenever, the President shall by and with the advice 
and consent of the Senate, appoint an envoy extraordinary 
and minister plenipotentiary to Great Britain, or to Swe¬ 
den, the compensation of that minister shall be so much 
and no more. It could not constitutionally say, and does 
not pretend to say, that if, under any contingencies of po¬ 
litical relation, it should become not possible, not honor¬ 
able, not expedient for the United States to have such a 
minister of the highest rank in Great Britain or in Sweden, 
and still the public honor and interests required the lega¬ 
tion to be maintained, that it should not be done by means 
of a minister of secondary rank, a minister resident, a 
charge d’affaires, or even an agent without title. It does 
not pretend to say that the President must, contrary to the 
judgment of himself and of the Senate, appoint a minister 
of the highest rank at every court of Europe or America. 

In regard to all the possible varieties of diplomatic 
functionaries of the Government, the act leaves them where 


44 


they stood before, in respect of their relation to the ap¬ 
pointing power of the President. 

In regard to their compensation, it provides what it may 
be at each of the courts enumerated for a minister of a par¬ 
ticular grade, or for a secretary, if such minister or secre¬ 
tary shall happen to have been appointed. If the President 
see fit to appoint, or to retain, at either of these courts, a 
minister of some other grade, for instance, minister resident 
or charge d’affaires, existing laws are to be looked into for 
knowledge of the rate of compensation. This act does 
not profess to repeal, nor does it by possible implication 
in fact repeal, the rate of salary previously fixed for any 
ministers but those of the rank of envoy extraordinary. 
It withdraws outfit and infit from all; but it leaves un¬ 
changed the statute compensation of ministers resident 
and charges d’affaires. 

Indeed, as to the salaries of envoys, its precise and sole 
effect is to substitute a scale of compensation, varying ac¬ 
cording to the court, in place of uniformity of maximum; 
increasing the maximum in case the envoy be accredited 
to Great Britain, France, Spain, Russia, Austria, Prussia, 
China, Brazil, Peru, and Mexico; leaving it unchanged if 
to Turkey and Chile; and reducing it if to Switzerland, 
Rome, the Two Sicilies, Sardinia, Belgium, the Nether¬ 
lands, Portugal, Denmark, Sweden, the Argentine Repub¬ 
lic, New Granada, Bolivia, Ecuador, Venezuela, Guatemala, 
and Nicaragua. 

As to the secretaries of legation, the law increases the 
maximum of those at London, Paris, and Madrid ; it leaves 
unchanged those of the secretaries at Berlin, St. Peters¬ 
burg, Rio Janeiro, Lima, and Mexico, and of a secretary 
at "V ienna, if the President should see fit to appoint one 


45 


there; and it reduces the salaries of secretaries, if the 
President shall choose to appoint any, at Berne, Borne, 
Naples, Turin, Brussels, the Hague, Lisbon, Copenhagen, 
Stockholm, Santiago de Chile, Parana, Bogota, Quito, 
Caracas, Guatemala, and Leon In all these missions, 
the President may or not appoint secretaries in his dis¬ 
cretion, whether he appoint envoys extraordinary at the 
same courts or not. For the second section of the act is 
complete per se, and its legal effect does not depend on the 
first, or any other section ; and thus it serves to undo the 
negative implication of a previous law, which refuses to 
provide for in advance, though it does not forbid, the allow¬ 
ance of a secretary to certain descriptions of ministers. 
In this act, the appropriation for secretaries is wholly a 
question of place. 

Nor, in regard to secretaries now in office, and who may 
be retained, does the change of rate of salary follow only 
on reappointment. The amendatory provision of the ap¬ 
propriation act disposes of this point expressly as to min¬ 
isters plenipoteniary; but that amendment is declaratory, 
and therefore cannot be held to impair the proper effect 
of other provisions, although omitting to declare what is 
their true construction. 

For in truth, as we have seen, these two sections have 
but one possible import, which is, that after a certain day, 
if in point of fact the' e be such ministers and such secre¬ 
taries at such and such places, then they shall be allowed 
not exceeding so much compensation. It is the rate of 
compensation of such officers actually in office whensoever 
appointed, whether a year ago or a year hence. They do 
not need re-appointment to entitle them to the benefits, or 
subject them to the.deductions of the new law. If it allow 


46 


them more salary, they may receive it; if it allow them 
less, they can receive that only; and whatever it takes 
away in the nature of outfit, infit, clerk hire, and office 
rent, it takes away absolutely, whether they are in office 
under an old or a new commission. 

Having thus relieved ourselves of the question what, in 
these respects, the act does or does not require, the way is 
clear to consider what, in the discretionary exercise of the 
authority, which in the same respects it recognises, the 
Constitution will permit. 

Can the President, on the given day, appoint envoys 
extraordinary in place of the present ministers resident, 
without the present concurrence of the Senate, that is, in 
the recess of the Senate ? 

The act of Congress may be considered in two points of 
view, either as measure of salary only to a u public minis¬ 
ter,” an officer created by the Constitution and the law of 
nations, or as creating a new statute office. If, as the gen¬ 
eral history of the Government seems to show, it be the 
former case, then the question of appointment is determin¬ 
able on grounds wholly independent of the tenor of the 
act of Congress. 

If, otherwise, it is the case of a new statute office, then 
it is one created prospectively, to take effect in the recess 
of the Senate. In which view of the subject the inquiry 
must be : Does a provision of this nature constitute a 
vacancy which the President can fill by temporary appoint¬ 
ment under the Constitution ? 

To take away a present commission, though it be only 
for the purpose of granting a iTew one to the same party, 
certainly occasions a vacancy in office. When Mr. Jeffer¬ 
son was recalled.from France, a vacancy thereupon existed 


47 


in that mission, though he was appointed Secretary of 
State. And so a vacancy happened, to which Mr. Bayard 
was appointed, when Mr. John Q. Adams was transferred 
from Itussia to Great Britain. I think it must be the same, 
in cases, where the inferior commission is terminated by 
any cause, and a superior one bestowed on the same person 
in whatever branch of the service, of the Government. 

But to avoid controversy on this point, let us suppose 
any one of the present ministers resident to resign or to 
die. What must or may the President then do? But for 
the new act, no one would hesitate to say that he might fill 
the vacancy by the appointment of another minister resi¬ 
dent. Nor does the act prevent this; for we agree that 
its provisions in this respect are permissive or facultative 
only, not imperative ; and it annuls no pre-existing author¬ 
ity. But, whether or not he can appoint a minister resi¬ 
dent, can he, if the envoy extraordinary be a new officer, 
make that appointment? 

I do not perceive, in the opinions of my predecessors, 
any determination of this precise question; but their gen¬ 
eral reasoning on the subject of what is a vacancy, would 
induce the conclusion that appointment may, in such case, 
be made. Mr. Attorney General Wirt, (Opinion, October 
22, 1823, vol. i, p. 412), Mr. Attorney General Taney, 
(Opinion, July 19, 1832, vol. i, p. 826), and Mr. Attorney 
General Legare, (Opinion, October 22, 1841, vol. ii, p. 
1408), have thoroughly demonstrated, and conclusively 
established, as a doctrine of administrative law, that the ex¬ 
pression of the’Constitution,—“all vacancies that may happen 
during the recess,”—signifies, “ all vacancies that may hap¬ 
pen to exist in the recess,” or, “when there happen to 
be any vacancies in the recess;” and they concur in the 


48 


general statement that, howsoever a vacancy happens to 
exist, if it exist, it may be filled by temporary appointment 
of the President. They well agree that it is the true spirit 
of the Constitution to have the offices, which Congress 
indicates to be needful by creating them, filled, though 
provisionally, rather than to remain vacant, or to force a 
special call of the Senate. They contradict most expressly 
the supposition, that in order to the existence of a vacancy, 
it needs that an office existing shall have been once filled 
by confirmation of the Senate or commission of the Presi¬ 
dent. 

We have, in the case we are now arguments gratia as¬ 
suming, an office established by Congress, to come into ex¬ 
istence on a certain day future in the recess of the Senate. 
On and after that day the office as such exists. Until ap¬ 
pointment be made, it is an office vacant. It is a vacancy, 
which, in the words of Mr. Wirt, “happens to exist,” and 
in the words of Mr. Taney, “happens to be.” Conse¬ 
quently, it would seem to be a vacancy, which may be 
temporarily filled by the President. 

There is no question here of usurping authority not 
given by Congress; it is only whether a power expressly, 
and even too absolutely, conferred, can be exercised with¬ 
out infringement of the Constitution. Not only is the 
permissive purpose of Congress evinced by the whole 
tenor of this act, but also by a clause of the civil and diplo¬ 
matic act for the next fiscal year, which appropriates for the 
full salary during the whole year of all the new envoys 
and secretaries of legation, and omits to make in terms 
any appropriation whatever for the compensation of min¬ 
isters resident. (Session Acts 1854-55, p. 659.) 

I reluct, in view of all these considerations, to come to 


49 


the conclusion, and cannot allow myself to think, that, even 
if these were statute offices, and the public service should 
require any one of them to be filled during the recess, it 
could not constitutionally be done. 

These considerations are presented on the premises of the 
act having created legislative offices. But, in my judgment,, 
it neither does nor can create the office of envoy extraordi¬ 
nary, either as a general office, or as a special office at a 
particular court. If it did this, the President might ap¬ 
point as for a new office under the act. So also in truth 
he ’might appoint without the act, in all contingencies of 
the power of appointment under the Constitution, and he 
can do no more under the act. If a vacancy shall occur 
in the mission at London by the resignation of the present 
incumbent during the recess, the President may fill that 
vacancy by an appointment holding good until the end 
of the next session of the Senate. If a vacancy shall occur 
by resignation or death in either of the missions now occu¬ 
pied by a minister resident, it maybe filled in like manner. 
If the President choose to leave any such mission in the 
charge of a charge d’affaires, he can do so: this act does 
not stand in the way. If he choose to fill the vacancy 
with a minister of the rank of envoy extraordinary, he may 
do so: this act defines the rate of salary, and the appropri¬ 
ation act supplies the money for its payment. If he choose 
to remove any of the present ministers, he can do so, and 
that creates a vacancy, which he may fill by temporary 
appointment. He may withdraw from either of the minis¬ 
ters resident the commission which that minister now holds, 
and fill the vacancy thus created by giving to the same or 
any other party a temporary commission as envoy extraor¬ 
dinary. But the act of Congress neither professes nor 
D—7 


50 


attempts to require this; Congress neither enjoins nor 
directs that the President shall remove incumbents or sub¬ 
stitute new commissions; it only signifies in advance, by 
the new salaries which it provides, its concurrence in, and 
approbation of, any such appointment, if either of the con¬ 
tingencies of constitutional power to appoint shall be exer¬ 
cised by the President. It regulates compensation for 
possible appointments, which may happen to be made after 
a certain day, and there its legislative, action on the ap¬ 
pointing power stops. 

But shall the President, during the present recess of the 
Senate, change the personnel , or essentially modify the 
character, of the whole or of two-thirds of the diplomatic 
corps of the United States? He has the constitutional 
power to do it; and Congress, confiding in his disposition 
to exercise conscientiously his large power in this respect, 
has in substance said, by this act and by the corresponding 
appropriation act,—We complete your power to do this 
by placing in your hands the requisite pecuniary means, 
and we submit the whole question, of public policy or exi¬ 
gency involved, to your executive discretion under the 
Constitution,—What in these circumstances shall be the 
rule of decision and action? 

The letter of the Constitution and of the acts of Con¬ 
gress empowers the President to make a voluntary substi¬ 
tution, either of new officers, or new offices, in all these 
cases; but the spirit of the law demands, or counsels, that 
the acts of the President, however rightful in the mere 
sense of power, shall be subject to the guidance and con¬ 
trol of the combined elements of public duty and respon¬ 
sibility, Primary among these undoubtedly is the consid¬ 
eration of what the public service in itself requires. If 


that shall appear to the President to dictate a change in 
all the legations, or any of them. Congress invites him to 
make it, and the Constitution authorizes it to be made. 
If, on the other hand, no intrinsic exigency of the public 
service invokes a change, either general or special, then it 
would seem to be most in harmony with the spirit of the 
Constitution, and not incompatible with the intention of 
Congress, to postpone action in a matter of so much 
gravity, and comprehending so important a branch of ad¬ 
ministration, until the proposed appointments or reappoint¬ 
ments can be made in consultation with the Senate. 

Then, also, if any legislative modifications of the new 
law should be deemed convenient, they can be introduced 
in season to bear upon the appointments made. 

These considerations, both of argument and conclusion, 
apply to the new secretaries of legation ; and more visibly 
in regard to delay of appointment in their case, for the 
reason that, as to them, the amendatory provision of the 
civil and diplomatic appropriation act contains direct im¬ 
plication of contemplated reserve on the part of the Presi¬ 
dent. 

Your second inquiry is,—“If such appointments cannot 
be, or are not, made before the meeting of the Senate, and 
with its advice, can the ministers resident remain in office 
until they shall be superseded by the new appointment ?” 
I have no doubt that they may: it is the legitimate con¬ 
clusion of all the foregoing premises and considerations. 

Your third inquiry is,—-“If they remain, can they be paid 
out of the appropriations made in the civil and diplomatic 
bill for the fiscal year, and at what rate ? 1 * 

There is a standing law, heretofore quoted, which enacts 
that the President shall not allow to any minister resident 


52 


a greater sum than at the rate of six thousand dollars per 
annum, as a compensation for personal services and ex¬ 
penses. (Act of August 26, 1842, v Stat. at Large, p. ,525.) 
That law is not repealed by the present act : it remains in 
full force, to determine the maximum salary of a minister 
resident. 

In the year 1831, when the mission to the Ottoman 
Porte was first established, the minister was of the rank of 
charge d’affaires, with the ordinary salary and outfit of that 
rank. (Act of March 2, 1831, iv Stat. at Large, p. 458.) 
So it continued until the year 1839, when appropriation 
was made for the salary of a minister resident in Turkey at 
the rate of compensation of the permanent law. (Act of 
March 3, 1839, v Stat. at Large, p. 343.) Since that time 
the- mission has been filled with a minister resident, for 
whom the salary of six thousand dollars has been appro¬ 
priated year after year, until the last year. (See, for ex¬ 
ample, the act of August 4, 1854, Session Acts, p. 563.) 

If the President sees fit to continue a minister resident 
at the Porte, he has the power, by the general law, to allow 
a salary of not exceeding six thousand dollars, and the 
series of appropriations for the mission of late-years will 
justify him in allowing that full amount. 

As to the other, existing ministers resident of the United 
States, if the President sees fit to continue them in office, 
although he may have the power, under the general law, 
to allow to each a salary of six thousand dollars, because 
the acts of the last session are silent on the point; yet, as 
the act of March 3, 1853, which first contemplated the 
general change of charges d’affaires to ministers resident, 
(Session Acts 1852-3, p. 203), and that of August 4, 
1854, which pursued the same idea, (Session Acts 1854-’5, 


53 


p. 563), only provide for the payment of the salary of a 
charge d’affaires, it seems to me that the President ought 
to continue that salary unchanged, in deference of the twice 
expressed will of Congress. 

As to the fund out of which their compensation shall be 
paid, you intimate a query suggested by the language of 
the appropriation,—“For salaries of envoys extraordinary 
and ministers plenipotentiary of the United States, two 
hundred and sixty-seven thousand five hundred dollars,”— 
which appropriation is confessedly made, as heretofore 
stated, on the supposition of the new commissions being 
granted by the President.. (Session Acts 1854-5, p. 659.) 

I think, in a matter of this nature, the greater includes 
the less; and that, even upon the face of the provision, it 
may be so construed as to be subject to draft for the pay¬ 
ment of the salaries of the ministers resident. 

Indeed, there is a previous law, which enacts that “such 
portion of the appropriations for, foreign missions as shall 
remain unexpended by reason of reduction or discontinu¬ 
ance of missions, if any should be made, may be applied to 
the payment of such allowances as shall become necessary 
in consequence of such reduction or discontinuance.” (Act 
of May 18, 1842, no. 195, v Stat. at Large, p 486.) This 
law assumes and accepts the fact, of a mission of less rank 
being subject to take the place of a higher, at the discre¬ 
tion of the President, and also construes the appropriations 
for missions as. applicable to the entire class of ministers 
bearing the lawful commission of the Government. 

Before closing this paper, it may not be undesirable to 
add a few words of explanation in regard to one mission, 
that to China, which is peculiar in some respects. 

We have seen how the mission originated. The first 


54 


minister, as will appear by reference to the files of the De¬ 
partment, held two commissions, one as envoy extraordi¬ 
nary and minister plenipotentiary, and the other as com¬ 
missioner plenipotentiary: the purpose being that he should 
act under the former commission if he came to be regularly 
accredited at Peking, and if not, under the latter. 

That mission becoming permanently organized on the 
latter basis, the subsequent ministers have each received 
only the appointment of commissioner. 

In reference to this fact it was that Congress, in passing 
the act of August 11, 1848, to carry into effect those 
clauses of the treaty with China which gave to our own 
“authorities” jurisdiction over our own citizens in China, 
(viii Stat. at Large, p. 592,) placed that authority in the 
hands of the “commissioner and the consuls of the United 
States duly appointed to reside in China.” (ix Stat. at 
Large, p. 276.) 

Thus, we now have a statute officer, a commissioner, to 
reside in China, with proper judicial functions, which are 
defined and regulated by Congress in virtue of its consti¬ 
tutional power to establish legislative courts of justice. 

The present act seems to overlook this fact, as also 
the fact that the minister in China is not accredited to the 
court of Peking, when it provides that the President shall 
appoint an envoy extraordinary and minister plenipoten¬ 
tiary to China. 

The President might now, as in the case of the first 
minister,, bestow both commissions on the same person, as 
he would probably do if any proper occasion should again 
arise for the appointment of an envoy extraordinary. If‘ 
however, no such occasion should arise, he may con¬ 
tinue,, in my opinion, to appoint a commissioner only, who, 


55 


in the analogy of similar cases, can lawfully have allowed 
to him the rate of salary of the last act of appropriation, 
but cannot have outfit or infit. 

You requested me verbally to touch, in passing, on such 
diplomatic or consular provisions c. f the act, as might seem 
to call for commentary, in addition to the specific inquiries 
noted in the memorandum accompanying your letter. I 
have made the suggestions which seemed to me pertinent 
on the first branch of the subject, and propose, at an early 
day, to reply to the residue of your communication, regard¬ 
ing the changes made by the law in the consular estab¬ 
lishment of the United States. 

I have the honor to be, 

Very respectfully, 

C. CUSHING. 


Hon. W. L. Marcy, 

Secretary of State. 




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ON SO MUCH OF THE ACT TO REMODEL THE 


THE 


DIPLOMATIC AND CONSULAR SYSTEMS 


OF 


THE UNITED STATES, 

APPROVED-MARCH 1, 1855, 


AND 

SECTION III OF THE ACT APPROVED MARCH 3, 1855, AMENDATORY' 


THEREOF, AS RELATES TO CONSULS. 


WASHINGTON: 

A. O. P. NICHOLSON, PUBLIC PRINTER. 






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( No. 11 ) 


CIRCULAR TO UNITED STATES CONSULS AND COMMERCIAL AGENTS. 


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OPINION. 


Attorney General’s. Office, 

June 2, 1855. 

Sir: I proceed now to complete my reply to your'com¬ 
munication of the 17th ultimo, by disposing of so much of 
the same, and of the written memorandum and verbal sug¬ 
gestions accompanying it, as relates to the consular provis¬ 
ions of the act of the last Congress, entitled “An act to 
remodel the diplomatic and consular systems of the United 
States.” 

That act provides, in its 4th section, as follows: 

“Sec. 3. And he it further enacted , That from and after the 
thirtieth day of June next the President of the United States 
shall, hy and with the advice and consent of the Senate, appoint 
consuls for the United States, to reside at the following places, 
who shall receive during their continuance in office an annual 
compensation for their services not exceeding the amount speci¬ 
fied herein for each, and who shall not he permitted to transact, 
under the penalty of being recalled and fined in a sum not less 
than two thousand dollars, business either in their own name or 
through the agency of others/ 7 

The section then goes on to enumerate sundry places, in 
various parts of the world, with salaries annexed to each, 
thus,—“London, seven thousand five hundred dollars.” 

The act provides, in its 5th section, as follows: 

“Sec. 5. And he it further enacted , That from'and after the 
thirtieth day of June next the President of the United States 
shall, by and with the advice and consent of the Senate, appoint 
consuls and commercial agents for the United States, to reside 
at the following places, who shall receive, during their continu- 


6 


ance in office, an annual compensation for their services not 
exceeding the amount specified herein for each, and who shall he 
at liberty to transact business.’ 7 

And the section then goes on to enumerate sundry 
places, each with salary annexed, some of them thus,— 
“Southampton, one thousand dollars;” and others thus,— 
“Curasao, five hundred dollars, (commercial agent.)” 

The 6th and 7th sections declare th^t no consul or com¬ 
mercial agent, who shall, after the thirtieth day of June 
next, be appointed to any of the places herein named ., shall 
be entitled to compensation until he shall have reached his 
post and entered upon his official duties; and that the 
compensation of every consul or commercial agent so ap¬ 
pointed to any of the places herein named shall cease on 
the day that his successor shall enter upon the duties of 
his office. 

The 9th, 10th, lltli, 13th, 14th, 15th, 16th, 17th, 18th, 
19th, 20th, 21st, 22d, and 23d sections provide various 
regulations concerning “consuls and commercial agents;” 
the 9th also, and that, alone, mentioning “vice consuls” 
and “consular agents.”. 

The 12th section provides as follows: 

“Sec. 12. And be it further enacted, That it shall he the duty 
of consuls and commercial agents to charge the following feea for 
performing the services specified, for which, under the penalty 
of being removed from office, they shall account to the Govern¬ 
ment at the expiration of every three months, and hold the 
proceeds subject to its drafts : 

“ For receiving and delivering ships’ papers, half cent on 
every ton, registered measurement, of the vessel for which the 
service is. performed. 

“For every seaman who maybe discharged or shipped at the 
the consulate or commercial agency, or in the port in which 


they are located, one dollar ; which shall' he paid by the master 
of the vessel/’ 

“For every other certificate, except passports—the signing 
and verification of which shall he free—two dollars, ’ ’ 

The 28th section declares that the President of the 
United States is “authorized to bestow the title of consul 
general” upon any consul in Asia or Africa, “/when, in his 
opinion, such title will promote the public interest” 

The 26th section repeals all acts or parts of acts author¬ 
izing the payment to consuls of “salaries for clerk hire 
and office rent.” 

The 27th section provides as follows: 

•“Sec. 27. And be it further enacted. The provisions of this 
act to take effect from and after the thirtieth of June next; any 
law or laws of the United States to the contrary notwithstand¬ 
ing-" 

Upon the construction of this act, the first question is: 
Does it supersede the consuls who may be in office when it 
goes into effect? 

•My judgment on this point is governed, by the. con¬ 
siderations stated at length in my letter of the 25th ultimo 
regarding the public ministers of the United States, which 
considerations apply in principle to the subject of consuls, 
and compel me to think that the words of enactment,—the 
President shall from and after such a day appoint,—signify 
only, may appoint,—or rather, that such and such compen¬ 
sation shall be allowed, after such day, to such officers of 
the denomination and at the places specified, who shall 
from and after that day be lawfully in office under the 
Constitution or acts of Congress. Of course, the act does 
not operate, either propfio vigore, or by compulsion of the 
President’s will, so as to supersede any consul. I refer to that 


8 


communication for a full statement of the considerations of 
constitutional right, of legislative and administrative action, 
and of statutory construction, which bring me to this con¬ 
clusion. 

It occurs to me, however, that one of those arguments 
may have additional force of impression, in being presented 
from another point of view. 

The appropriation act provides that the increased salaries, 
which the new act allows from and after a certain day, 
may be paid to such existing envoys extraordinary as may 
not be re-appointed. This clause of the appropriation act 
does not repeal any thing; it only assumes that a certain 
thing may lawfully happen, and then declares what is to be 
intended as the meaning of the general act as applicable to 
that thing in case it shall thus happen. That supposed 
lawful thing is, the abstention of the President from re-ap¬ 
pointing certain envoys extraordinary. Now, this absten¬ 
tion could not be lawful if the language of the act, in regard 
to the appointment of envoys from and after a prescribed 
day, implied an obligation imperative on the conscience of 
the President. But the clause of the appropriation act admits 
the legality of the supposed abstention : of course the pro¬ 
vision of thejnew law in relation to the appointment of 
envoys, from and after a certain day, though absolute in 
terms, is not to be construed as imperative, and was not so 
intended by Congress, either in the sense of inclusion of 
appointment or of exclusion, or as regards either time or 
nominal designation. 

Now, the same precise words, and in the same collocation, 
are employed in regard to consuls and commercial agents, 
as well as envoys and secretaries of legation; and, accord¬ 
ing to the settled rules of statutory construction, what they 


9 


mean in one of the cases they mean in all. But we have 
ascertained that; the words are not imperative in their re¬ 
lation to envoys; of course they are not imperative; in their 
relation to consuls and commercial agents, either in the 
sense of inclusion of appointment or-of exclusion, or as 
regards either time or nominal designation. 

Neither the present nor any other law of the United 
States professes to define the difference of meaning be¬ 
tween the terms consul, vice consul, commercial agent, and 
consular agent. Some writers on public law employ the 
term “ consular agent.’'’ as the generic designation of the 
class of consular offices, just as “diplomatic agent” is often 
used in a similar generic sense to denote all diplomatic 
offices, the ambassadors and public ministers of the Consti¬ 
tution. But the term “consular agent” certainly has a 
much narrower acceptation in the usage of this Government. 
The language of the Constitution, as well when it refers to 
the appointments of our own “consuls,” as when it gives to 
the courts of the United States jurisdiction over foreign 
“ consuls,” must be regarded as making this term the true 
nominal designation of the class in our law. 

In the early usage of the Government, we had only con¬ 
suls and vice consuls, both appointed by nomination to the 
Senate; but the present act, in the section where it speaks 
of “ vice consuls” and “consular agents,”’seems to regard 
them as the subordinates of consuls, and not requiring nom¬ 
ination to the Senate ; and this view of their relation is in 
accordance with existing usages. (Moreuil, Agents Consu- 
laires,« p. 65.) 

The act assumes another description of consular function¬ 
ary, that of “ commercial agent,” as requiring to be com¬ 
missioned by nomination to the Senate, and therefore hav- 
C—2 


10 


ing the same relation to the laws of the United States as 
u consul ;” and, in assigning u commercial agents” to the 
colonial ports of the Netherlands, it recognises the existing 
usage of applying this designation to consular officers ap¬ 
pointed to countries where no formal recognition of them 
by exequatur can be demanded or obtained by the Govern¬ 
ment, 

Inspection of the language of public treaties will aid us 
to understand the mutual relation of the several grades of 
“consuls.” 

Our first consular convention with France stipulates that 
either Government may appoint consuls and vice consuls, 
who may establish “agents” in the different ports or places 
of their departments, such agents to hold, by “commission 
from one of the said consuls.” (viii Stat. at Large, p. 108.) 

Our previous treaty of commerce with France provides 
that each Government may have, in the ports of the other, 
“consuls, vice consuls, agents, and commissaries.” (viii 
Stat. at Large, p. 28.) , - 

The same phrase occurs in our first treaty of amity and 
commerce with Sweden, (viii Stat. at Large, p. 74.) 

In a subsequent treaty with the same power, (viii Stat, 
at Large, p. 236,) the phrase employed is consuls, vice 
consuls, and commercial agents, (agents de commerce.) It 
also speaks of “consuls and their deputies,” (suppleans.) 

In a treaty with Prussia, consuls, vice consuls, commer¬ 
cial agents, (agents commerciaux,) and commissaries are 
classed together as consular officers. 

But the late consular convention with France is the most 
explicit of all on this point. It makes provision for consuls 
general, consuls, vice consuls, and consular agents; the vice 
consuls and consular agents to be appointed by the consuls 


11 


general and consuls, and approved by their Government. 
(Session Acts 1853—4, Treaties, p. 117.) It also provides 
for “eleves consuls.” 

This convention is framed with reference to the laws of 
France, by which vice consuls and consular agents are the 
u delegates” of the consuls, (Ordon. 26 Octobre, 1833, De 
Clercq, Formulaire, p. 509,) and which establish the office 
of eleve consul. (Ordon. 20 Aout, 1833, ibid p. 467.) 

We may conveniently regard the word of the Constitu¬ 
tion, “ consuls,” as the generic designation of a class of 
public officers existing by public law, and recognised by 
numerous treaties, who are appointed by their Government 
to reside in foreign countries, and especially in sea ports, 
and other convenient points, to discharge administrative, 
and sometimes judicial, functions in regard to their fellow- 
citizens, merchants, mariners, travellers, and others, who 
dwell or happen to be in such places ; to aid, by the au¬ 
thentication of documents abroad, in the collection of the 
public revenue; and generally to perform such other duties 
as may be assigned to them by the laws and orders of their 
Government. 

Congress cannot, by legislative act, appoint or remove 
consuls any more than ministers; but it may increase at will 
the descriptions of consular officers; it may enlarge or 
diminish their functions; it may regulate their compensa¬ 
tion ; it may distinguish between some officers appointable 
with advice of the Senate, and others appointable by the 
President alone, or by a head of department 

Accordingly, by successive acts of Congress, namely: the 
act of April 14, 1792 f (i Stat. at Large, p. 254;) July 6, 
1797, (i Stat. at Large, p. 533;) March 2, 1799, (i Stat. 
at Large, p. 690;) February 20, 1803, (ii Stat. at Large, 


12 


p. 203 ;) March 3, 1813, (ii Stat. at Large, p. 810;) April 
20, 1818, (iii Stat. at Large, 437;) March 1, 1823, (iii Stat. 
at Large, p. 737;) March 3, 1836, (iv Stat. at Large, p. 
773 ;) July 20, 1840, (v Stat, at Large, p. 394;) March 3, 
1843, (y Stat. at Large, p, 750;) August ll,vl844, (ix 
Stat. at Large, p. 276;) July 29, 1850, (ix Stat. at Large, 
p. 442 ;) and by various other incidental provisions of law; 
duties are imposed, and rights conferred, on this class of 
public officers, under the different statute names of consuls 
general, consuls, vice consuls, commercial agents, vice com¬ 
mercial agents, and consular agents. 

But all these acts do, by no means exhaust the subject. 
On the contrary, the important act of 1792 contains a de¬ 
claratory provision, which is to be understood as implied in 
all other acts of Congress, as follows: 

The specification of certain powers and duties herein to he 
exercised or performed by the consuls and vice consuls (or other 
consular officers) of the United States, shall not be* construed to 
the exclusion of others resulting from the nature of their ap¬ 
pointments, or any treaty or convention under which they may 
act/ 7 (Sec. 9.) 

So that, outside of acts of Congress' the functions of con¬ 
suls are indicated, and their duties and rights defined, 
first, by many general treaties, conventions, and consular 
conventions/entered into between the United States and 
other sovereign powers. 

Then, like other executive officers of the United States, 
consuls are subject to regulations issued by the proper 
head of department. (See Henshaw’s Manual, p. 122; 
Gratiot vs. United States, iv Howard’s 1L, p. 80; United 
States vs. Mr. Daniel, vii Peters, p. 1; Aldridge vs. Wil¬ 
liams, iii Howard, p. 9.) 


13 


In addition to which, they possess, by the law of nations, 
many functions, rights, and privileges, other than such as 
are defined by convention, by legislative act, oi\by regu¬ 
lation. 

But their appointment remains unchangeably one of the 
organic powers of the Executive, derived from the Consti¬ 
tution, not from any act of Congress. 

In illustration of which is the fact, that in the course of 
the first three years of the >administration of President 
Washington, and prior to the enactment of the first act of 
Congress on the subject, consuls were duly appointed and 
commissioned, mostly during the sitting of the Senate, but 
some in its recess, for the ports or islands of Canton, Ma¬ 
deira, Liverpool, Dublin, Bordeaux,: Nantes, Rouen, His¬ 
paniola, Martinique, Bilbao, London, Surinam, Santa Cruz, 
Lisbon, Morocco, Copenhagen, Bristol; and vice consuls 
for Cowes, Marseilles, Hamburg, Havre-de-Grace, Fayal 

It is impossible for me to doubt, therefore, that the only 
effect of the new act in this relation is to say, that, as to 
such consuls or commercial agents as shall, on the day 
prescribed, be'lawfully in office at the respective places 
mentioned, the rate of compensation per annum thereafter 
shall be such as the act allows. The President may appoint 
new consuls at any of the places mentioned on that or any 
other date, if he sees fit, because this the Constitution em¬ 
powers him to do; but this act neither empowers nor 
requires him to do it: all which in this relation it enacts 
is rate of compensation for “consuls” and “commercial 
agents” at certain places, whenever the same shall be, or 
may have been, appointed; that compensation to take effect 
on the day defined by the act. 

Further to show that this act cannot be reasonably 


14 


construed as intending to require the President to do what 
the Constitution, on considerations of public policy, has en¬ 
trusted to the sole discretion of the Executive- may be 
mentioned the clause of the act which says, in words, that 
the President shall appoint a “consul” at Port-au-Prince. 
This, if done, would have the effect, according to inter¬ 
national usage, of placing the Haytien empire in diplomatic 
relation with the United States. It is not presumed that 
such was the purpose of the law makers; yet such is the 
necessary effect of the law, if the words “shall appoint” 
are mandatory in operation. If they are mandatory in any 
case, they are in all: if not mandatory in one case, they 
are so in none. 

Another illustration, which this act itself affords, of the 
necessity of leaving the power of determining when and 
at what places to appoint officers of this class, and of what 
rank to appoint them, where the Constitution placed it, in 
the hands of the Executive,—is the provision for establish¬ 
ing “commercial agents” in five of the colonies of the 
Netherlands. This provision has apparent reference to the 
fact, which once existed, namely, the refusal of the Nether¬ 
lands to receive consuls in their colonies. But this fact no 
longer exists; for the convention of January 22, 1855, 
between the United States and the Netherlands, and the 
ratifications of which have been exchanged, stipulates for 
the admission of consuls general, consuls, and vice consuls, 
in all the open ports of the transmarine possessions of the 
Netherlands. 

Before passing from this part of the act, it may be well 
to observe that the phrase in the 4th section, which forbids 
certain consuls “to transact * * business either in their 
own name or through the agency of others,” cannot be 


If) 


taken literally; for if so, the consul could not have any 
private interests, or even a household, all which involve the 
transaction of business. These words must be construed 
in reference to the mischief: which the history of the act 
shows they were intended to remedy, namely, “trading as 
a merchant,” which, undoubtedly, the provision prohibits. 
In the 6th section the same phrase of undue generality 
is found, but there it is employed in the sense of permission, 
and therefore does not need to be carefully scrutinized. 

in forbidding consuls A to transact business,” that is, “to 
trade as merchants,” the 4th section further says, “under 
the penalty of being recalled and fined in a sum not less 
than two thousand dollars.” 

The phrase here used,—“funder the penalty of being re¬ 
called,”—like that in the 12th section requiring the consul 
to collect and account for certain fees u under the penalty of 
being removed from office,” is of dubious legality. I do 
not think dismissal from office can be enacted by statute 
as penalty. What court is to try and judge? Is the pro¬ 
vision designed for the case of impeachment? It does not 
say this. Does the act mean to dictate to the President 
when to remove a public officer ? That cannot be. The 
power of removal, and the absolute right to exercise it 
according to his conscience, like the power of appointment, 
he holds by the Constitution. 

Besides, it is neither convenient, nor according to the 
analogies of our political system, to consider removal from 
office the infliction of a legal penalty. A penalty is the re¬ 
sult of a legal process. Dismissal from office belongs to a 
dilferent class of administrative or political considerations, 
resting in the mere executive discretion of the President. 

On the whole, this provision of the statute must be 
deemed inexecutable. 


16 


No' provision is made as to the process, by which this 
hue of two thousand dollars is to be recovered. In the 
case of another violation of duty,.'the 20th section indi¬ 
cates: the remedy by indictment under the act of July 20th, 
1840. Possibly the same, remedy would apply here; as 
the act referred to makes consuls and commercial agents 
indictable u for all malversation and corrupt conduct in 
office.” (v Slat. at Large, p. 397.) I should be more confi¬ 
dent on this point, but for the fact of the present act sin¬ 
gling out the misdemeanor of the 20th section as indictable 
under the act of July 20, 1840, and thus raising negative 
inference as to the applicability of the penal process of that 
law to the other new definitions of misconduct in office.. 
Possibly the present fine, if not recoverable by indictment, 
might be reached by an action of debt in the name of the 
United States, v. 

The foregoing observations afford .a reply to several of. the 
points of inquiry verbally indicated by you, and also to 
three others of the questions of the written memorandum, 
namely: 

Can consuls, not newly appointed or reappointed at the 
places named in the act, receive the salaries therein affixed 
to said places respectively ? 

Can the President appoint or retain consuls ;at places 
where there are now consuls, but with no provision in the 
act for consuls at such places U 

Can the President, by and with the advice of the Senate, 
appoint consuls at places where there are now no consuls, 
and with no provision in the act for consuls at such places-? 

To each of these" questions, my reply is in the affirmative. 
The act has operation, in lespect of salary, as to consuls 
at the places named, without their being reappointed; such 


17 


as have been lawfully appointed continue in office until 
their present commissions are withdrawn; and the Presi¬ 
dent can, with concurrence of the Senate, appoint consuls 
at any place whatever, whether such places now have con¬ 
suls or not, and whether they be mentioned in the act or not. 

The appropriation act of the last session of Congress 
contains an item of two hundred and seventy-one thousand 
seven hundred and fifty dollars “for the consuls of the 
United States.” All the observations concerning the sim¬ 
ilar appropriation for envoys, in the same act, apply to 
this appropriation for consuls. 

The next question is,-—Can vice consuls and consular 
agents be appointed after this act goes into operation ? 

Undoubtedly. The act provides for consuls or commer¬ 
cial agents at certain places; but does not contain any 
phrase which, either expressly or impliedly, forbids the 
appointment of consuls or commercial agents at other 
places, or the appointment of vice consuls or consular 
agents. If it did, the prohibition would be without effi¬ 
cacy. Instead of even professing to do this, although the 
act provides places and salaries for consuls and Commercial 
agents only, yet, in the 9 th section, it expressly recognises, 
by name, and regulates, in some respects, vice consuls and 
consular agents. While so mentioning and regulating 
them, it leaves untouched the law, whatever it is, by which 
their existence and their functions are determined. 

Next comes the question,—What is the operation of this 
act in respect of fees, so far as regards the consuls and 
commercial agents to whom the act gives salary ? 

In order to answer this question satisfactorily, it be¬ 
comes necessary to analyze the various pertinent provisions 
of the act. - •> v c, ..7 v.;:; 

C—3 


18 


In the first place, it does not contain any general clause 
of repeal. At its close, instead of the usual phrase,—P All 
acts or parts of acts inconsistent herewith are hereby re¬ 
pealed,”—it says,— u The provisions of this act to take 
effect,” on a certain day, 0 any law or laws of the United 
States to the contrary notwithstanding.” That it would 
do at any rate, without containing the words,—-Uany other 
laws notwithstanding.” Of* course, the section leaves the 
question, of what the act repeals, to depend on other parts 
of it, and its general tenor. 

In the second place, the act in its general tenor is affirm¬ 
ative ; and the. established rule of law in this respect is that 
“ an affirmative statute does not repeal a precedent affirm¬ 
ative statute ; and if the substance be such that both may 
stand together, they shall have a concurrent efficacy.’’ 
(Dvvarris on Statutes, p. 474.) Qf course, on the, point 
whether any provision of this act repeals by implication of 
identity of subject-matter any provision of previous acts, 
it will be necessary to consider whether the two provisions 
compared are incapable of concurrent efficacy. 

If the act professed to revise the question of consular 
regulation as a whole, then it might by implication repeal 
former acts. (Bartlett vs. King, xii Mass. IL, p. 548 ; Com¬ 
monwealth vs. Cooley, x Pick. B,, p. 40.) But this it does 
not undertake to do. And law does not favor repeal by 
implication. (Snell vs, Bridgewater Manufacturing Compa¬ 
ny, xxiv Pick., p. 296.) Hence, a later statute on a given 
subject, not repealing an earlier one in terms, is not to 
be taken as a repeal by implication, unless it is plainly re¬ 
pugnant to the former, or unless it fully embraces the whole 
subject-matter. (Goddard vs. Barton, xx Pick., p. 410.) 

In the third place, the act refers to, and amends express- 


19 


ly, or adopts for new purposes, parts of previous acts in 
several instances; as the acts of February 28, 1803, and of 
July 20, 1840, in the 19th section, and that of April 14, 
1792, in the 21st. Of course it does not in other respects 
repeal those acts. 

Finally, it contains provisions expressly repealing par¬ 
ticular things assumed t'o. be allowable by previous acts: as 
allowances of “clerk-hire and office-rent,” in the 26th sec¬ 
tion; “fees for the signing and verification of passports,” 
in the 13th; and “commissions for receiving or disbursing 
wages or extra wages of discharged seamen,” in the 14th. 
Such cases of express repeal in a statute, especially of cer¬ 
tain individual things of a class, are the ordinary implica¬ 
tion that all other things of the same class remain unre¬ 
pealed. 

Bearing in mind these premises, let us now see what the 
12th section of the act says on the subject of fees of con¬ 
suls and commercial agents.' 

Its language, .we Jiaye, seen, is very peculiar, as follows : 

“ Sec. 12; And be it further enacted , That it shall be the duty 
of consuls and commercial agents to charge the following fees 
for performing ‘ the services specified, for which, under the pen¬ 
alty of being removed from office, they, shall account to the 
government at the expiration of every three months, and hold 
the proceeds subject to its drafts: 

“For receiving and delivering ships’ papers, half cent on 
every ton, registered measurement, of the vessel for which the 
service is performed. 

“For every seaman who may he discharged or shipped at the 
consulate or commercial agency, or in the port in which they are 
located, one dollar; which shall be paid by the master of the vessel. 

“For every other certificate, except passports,—the signing 
and verification, of which shall be free,—-two dollars,” 


20 


This provision imposes, in terms, a special duty on “con¬ 
suls and commercial agents,” which is, to collect certain fees 
for the benefit of the Government. 

Does this provision, in terms, forbid the receipt of any 
other fees ? Undoubtedly not. 

Let us assume the case of some other fee, which “consuls 
and commercial agents” are now permitted by statute to 
demand, and reason upon it: for instance, the fees for 
taking charge of, and paying, or delivering over, the effects 
of decedents, citizens of the United States, within their 
j urisdiction. 

The act of April 14, 1792, entitled “ An-act concerning 
consuls and vice consuls,”.contains the following provisions: 

For the taking into possession, inventorying, selling, and 
finally settling, and paying, or transmitting as aforesaid, the 
balance due on the personal estate left by any citizen of the 
United States, who shall die within the limits of his consulate, 
five per centum on the gross amount of such estate. 

‘‘For taking into possession, and otherwise proceeding on 
any such estate, which shall he delivered over to the legal repre¬ 
sentative before a final settlement of the same, as is hereinbefore 
directed, two and a half per centum on such part delivered over 
as shall not be in money, and five per centum on the gross 
amount of the residue. ' ’ • 

Is this fee withdrawn by the 12 th section of the present 
act ? I think not. There is no phrase in it which hints at 
such repeal. Was it the design of the section to require 
the collection of certain fees, and those only? If so, the 
section does not say this : it contains not a single word of 
general exclusion or prohibition. 

Nor can it by any established rule of construction be 
held to imply this; for the enactment that it shall be the 
duty of “consuls and commercial agents” to collect and 


21 


pay over to the Government certain particular fees, is per¬ 
fectly compatible with their lawfully demanding and re¬ 
ceiving other fees, whether the same be or not specified as 
the property of the Government. 

Finally, in another part of the act, there is a provision 
which, though out of its natural place, and thrown in 
where it is incidentally as it were, yet must be held to 
settle this point. 

The 21st section has for its main object to amend the 
act of April 14th, 1792, so as to make it the duty of the 
consul, in settling the estate of a decedent, to observe any 
directions regarding the same, which the deceased may 
have given “by will or any other writing;” and, if such 
were the direction, then to hand over the effects to any 
appointee of the deceased; in which case, to the end of 
protecting the property from local interference, the consul 
is “to place his official seal” on it, and to break and 
remove the same only at the request of the appointee : 
“he, the said consul or commercial agent, receiving there¬ 
for two dollars for each seal.” Appended to the enact¬ 
ment of a particular fee in a particular case is the following 
general provision: “which, like all other fees for consular 
service, including all charges for extension of protest, as 
also such commissions as are allowed by existing laws on 
settlement of estates of American citizens by consuls and 
commercial agents, shall be reported to the Treasury De¬ 
partment, and held subject to its order.” 

This enactment, which seems to have come in by amend¬ 
ment, or at least without recollection of the tenor of the 
12tli section, where it properly belongs, completes the 
proof, that the act does not repeal nor modify: any fees 
or commissions, except those,, which it expressly mentions 


22 


in that sense, and that it leaves all others to stand on ex¬ 
isting laws or regulations of the Department. 

It remains to consider how the act operates on the fees 
for consular service receivable by consuls and commercial 
agents. 

By the 12 th and 21st sections, together, it is made the 
duty of consuls and commercial agents to hold the’ pro¬ 
ceeds of fees for consular service subject to the order or 
draft of the Government. 

What shall be done with the proceeds, by the Govern¬ 
ment, the act does not determine. Of course, it passes to 
the account of the unappropriated miscellaneous funds of 
the treasury. 

The punishment indicated for failing thus to account, is 
u the penalty of being dismissed from office. ” We have seen 
that this penal provision is without possibility of legal effect. 

But another statute supplies the requisite sanction. The 
act, required to be performed, is of such nature,'as to bring 
the consuls and .commercial agents, of whom it speaks, 
within the purview of the act of August 6, 1846, for the 
better organization of the treasury, and for the collection, 
safe-keeping, and disbursement of the ; public revenue, by 
one of the sections of which, the refusal of any person to 
pay any draft lawfully drawn on him for public money in 
his hands,'is declared to be an indictable felony, (ix Stat. 
at Large, p. 63.) 

In this case, also, as in that of the penal provision of 
the 12th section, we may recur in aid to the act of April 14, 
1792, and to the bond, which that act requires of consuls, 
conditioned for the true and faithful discharge of the duties 
of their office according to law. (i Stat. at Large, p. ,256.) 

But what are u all other fees for consular service,” which, 


23 


by a seeming afterthought of the act, as incidental to a 
secondary matter of regulation, and with iteration of enact¬ 
ment of the words of destination of the 12th section, are 
thus added to the fees, which consuls are to exact hereafter 
as collectors for the Government ? 

It is -obvious that many fees, which it has heretofore 
been for the interest of the consul to demand on his own 
account, he must now demand as a mere public duty for 
the sole benefit of Government. 

On this point the Government, if, in pursuance of the un¬ 
derstood theory of the act, it aims, by fees collected, to be 
indemnified for its outlay in the salaries, is brought into 
immediate conflict of interest with every consul, and with 
every person transacting business with any consul. The 
merchant or shipmaster will, of course, desire to pay the 
least he may; and, while the consul will have no personal 
inducement to be critical in exacting u fees for consular 
service, 17 he will incline to inquire what fees, if any, are 
not consular, and so not the property of the Government. 

In determining this point, we have to collate all those 
disconnected parts of the jact, which are correlative in 
sense, to consider them in subordination to the general 
theory of the act, and to compare them with previous laws, 
and with the regulations of the Department. 

I venture to submit only some hasty observations on the 
subject. 

To begin,—the tenor of the act, as we have already seen, 
except in the two or three cases where it makes change 
expressly, leaves untouched the question of the particular 
services for which fees are to be charged. 

I now add that it leaves untouched the existing regula¬ 
tions of the Department in such matters, and its power to 
make pertinent new regulations. 


24 


The 12th section takes up the tonnage duty, which is to 
be levied hereafter, in place of a fixed fee, for receiving 
and delivering a ship’s papers; the fee of one dollar for 
every seaman discharged or shipped; and the fee of two 
dollars “for every certificate;” and gives them to the Gov¬ 
ernment. 

The 21st section disposes of a prescribed fee of two dol¬ 
lars for placing the official seal in certain cases on the prop¬ 
erty of decedents, and removing it when duly requested, 
and “all other fees for consular service, including all 
charges for extension of protest, as also such commissions 
as are allowed by existing laws in settlement of estates:” 
all which are given to the Government. 

The 12 th section forbids making any charge for the sign¬ 
ing and verification of passports. 

In case of a revision of the table of fees- this item de¬ 
serves re-examination. I think, under the old system, citi¬ 
zens of the United States, travelling in foreign countries on 
business or pleasure, as a general thing, received from 
consuls more than they gave in return; and that complaints 
on this point might have come with more grace from the 
consuls themselves. Now, at any rate, when consuls are 
to receive salaries from the Government, but to collect fees 
with which to reimburse the public treasury, it is not easy 
to see why the whole cost of the consular establishment 
should be cast on merchants and shipowners, to the exemp¬ 
tion of wealthy travellers, who may happen to have occa¬ 
sion for the services of consuls. 

The 14th section prohibits commissions on receiving or 
disbursing the wages of discharged seamen, or money ad¬ 
vanced to seamen in distress. 

The 26th section, in effect, prohibits any allowance to 


consuls on account of “salaries for clerk-liire and office- 
rent;” but this applies only to a few exceptional cases, for 
which provision has been made in acts of appropriation. 

I have compared these provisions of law with the . table 
of fees now charged at one of the largest ports of com¬ 
merce, and perused the remarks and queries of the consul 
thereon, as communicated to me by your letter of the 1st 
instant, and submit the following annotations: 

1. In the terms ..of the : 12 th section, a fep of u two dol¬ 
lars” is to be exacted, in behalf of the Government, on 
“ every certificate;” which must be construed to mean,—• 
certificate under the seal of* the consulate. 

2. The record to be kept by the consul seems to be an, 
official duty, and of course the fees therefor belong to the 
Government. 

3. The making of-copies,is a. clerical, not. a “consular 
service,” and whatever may be paid for copies belongs to 
the consul. 

4. Drawing out a power, of attorney, bottomry bond, 
will, or any similar service, is a notarial, not a consular, act; 
and therefore only the certificate upon it would go to ac : 
count, of the Government. 

5. I should have said the same of extending a.protest, 
but for the phrase in another part of the act,-—“a book- for 
the entry of protests,, and in which all pther official.consular 
acts likewise shall be recorded,'’^--which seems to coyer the 
fact of extending a protest, and so tp give the fee. to. the 
Government, if so, there should be a regulation-scale of 
fees according to the length of' the protest, as in England. 

6. No “commissions” appear, to. be disposed of by the act* 
except on wages advanced to seamen, which are forbidden, 
and on the estates of decedents, which go to t : h e Government. 

C—4 




26 


7. I think the fees collected for the Government should 
be in our own coin, or its representative value in exchange. 

Without extending these comments, it will suffice to sug¬ 
gest, whether it be not expedient that the whole subject of 
consular fees, which the present act leaves in its previous 
indefiniteness, complicated by the new provisions, should 
now be deliberately revised in the Consular Bureau of the 
Department. 

Those acts of a consul, for which compensation was 
charged in the old system, consisted of two great divisions, 
namely: 

1. Fees taken in respect of matters wherein the con¬ 
sul’s interposition is required by law, such as the custody 
of ships’ papers, discharge of seamen, payment of wages 
or relief-money, certificates of invoices and other acts in 
aid of the revenue laws, and custody of the estates of de¬ 
cedents. 

2. Fees taken in respect of matters wherei i the consul’s 
interposition is voluntary on the part of the person calling 
for the service, such as the extension of protests, the pre¬ 
paration of conveyances, arbitration, or bottomry bonds, 
attending sales, attesting signatures, and furnishing copies 
of documents. 

This division, again, is subdivisible into voluntary acts, 
which are consular, and others which are purely clerical or 
notarial: which distinction is expressly recognised by the 
regulations of the Department. (Consular Instructions of 
1838, ch. viii.) 

To meet all these conditions of the question, other gov¬ 
ernments, in adopting the system of salaries for consuls, 
have been compelled to issue very explicit and stringent 
regulations to secure the full collection of the fees due the 


27 


Government.. (See the British u Order in Council” of May 
1, 1855, London Gazette, May 11, 1855 ; and the French 
u Ordonnance sur les Droits de Chancellerie,” 6 Novembre, 
1812, in De Clercq, Formulaire, p. 50.) 

How very imperfect our whole system is in the matter 
of these and other details, will be fully appreciated on a 
perusal of the contents of De Clercq’s “ Guide des Con- 
sulats” and his u Formulaire.” 

llemember, it is only certain specified fees, which the act 
of Congress makes it u the duty ” of the consul to collect. 
Unless his duty in this respect be more thoroughly de- 
fined, it is,to be feared that comparatively little of those 
fees, which are uncertain in amount, and for voluntary ser¬ 
vice, or service the demand for which is voluntary, will, 
or can be,, compulsorily collected. 

The acts of Congress do not contain a table of commis¬ 
sions and fees. They prescribe certain fees applicable to 
.some few only of the acts, which a consul now performs. 
All other fees, including those of the largest production, 
stand bn usage and regulation, and required to be reconsid¬ 
ered, in connection with other parts of the new system 
proposed by Congress. 

Next comes another most embarrassing question. The 
act does not profess to abolish vice consuls and consular 
agents; on the contrary, it recognises their continued 
existence. IIow are these to be paid? No salary is allowed 
them. Possibly it was the original thought of the act to 
consider a vice, consul or consular agent as the mere dep¬ 
uty, or locum teneus of the consul, and to be paid out of 
the salary of the latter. But the act does not say this. 

When a consul is absent from the consular residence on 
leave, it may be that the substitute, who supplies his place, 


28 

ought to receive the salary, or a part of it. But the act 
does not'so determine. To the contrary of this, in saying, 
in substance, that, if he be absent av ith permission of 
the President, his salary,-—which if he belong to the class 
of consuls forbidden “to transact business,” we may as¬ 
sume to constitute his' meians of subsistence,—shall con* 
'tinue, it implies that the salary is not to be enjoyed by his 
deputy. Perhaps the President may order, as the condi¬ 
tion of leave to a consul, that he shall provide and pay a 
deputy.’ It is hot the' general rule, however, in other 
branches of the public' service, that a salaried officer, tem¬ 
porarily absent, from duty on express leave of the President, 
pays for the service of a substitute during such absence. 

1 The person, thus left by a consul at the consular resi¬ 
dence' in ad interim charge of the consulate, sometimes 
bears the name of “ consular agent;” but that designation 
better describes another class of persons, namely, an 
agent to reside at some other port or place depending 
on the consul. It would seem to be more exact to call a 
substitute employed by the consul on the spot his “depu¬ 
ty;” the person employed to till the place temporarily, in 
his absence, “vice consul;” and to ’apply the name “con¬ 
sular agent” to consular officers employed in outposts 
within a given consular Circumscription. 

Perhaps the usage of the Department, in applying the 
name “consular agent” to the “sttpplekiit of an absent con¬ 
sul,. officiating as consul in Urino in the absence of the con¬ 
sul projjietdrio^ grew out of the supposition that the vice 
consuls, by inference 1 from the act of I 71)2, or otherwise, 
could only be ‘ appointed by nomination to the Senate: 
which inference is negatived by the tenor of treaties and 
of the present act. Of'Course, no obstacle exists to the 


29 


systematic use of the term “consular agent,” according to 
its proper acceptation. 

Numerous ports exist, which are more or less remote 
from the location of any consul, but in which, neverthe¬ 
less, consular services are needed on the spot. Must the 
consul in every such case go there for the special occasion ? 
If so, he incurs expenses, and leaves his own port without 
his presence. On the other hand, if the consular services 
are not such as must of necessity be performed on the spot, 
it will be inconvenient and expensive for the shipmaster 
to be compelled to leave his ship, and, perhaps with his 
officers and men, as in extending a protest for instance, to 
repair to the place of residence of the consul. 

Under the old system, the convenience and economy of 
all parties were consulted by the appointment of a vice 
consul or consular agent for such out-ports, as at Nuevi¬ 
tas, Cienfuegos, and Manzanilla, in Cuba; such agent col¬ 
lecting the fees, and retaining the whole or part as com¬ 
pensation for his services, and transacting the business 
under the direction of the consul. (Cons. Instructions of 
1838, chap, iv, s. 7.) 

But the future relations of this part of the general 
subject-matter seem to have escaped the' vigilance of Con¬ 
gress. The act does not require the consul to.travel, at 
his expense, to and fro between the place of his consular 
residence and the outposts.of his consular circumscription; 
it does not require him to divide his salary with local vice 
•consuls or consular agents; it makes no provision whatever 
for the case. 

All these contingencies are of ordinary occurrence, and 
are provided for in the laws and regulations of other 


30 


governments paying salaries to consuls, as for instance those 
of the French Empire. 

Besides which, the act does not profess, in its enumera¬ 
tion of consuls, to be exclusive; there is no such phrase 
in it as the following and no oilier y” it abolishes no con¬ 
sulates; it neither in fact nor in pretension deprives the 
President of the power to retain consuls at places where 
they now exist, but which are not named in the act, nor to 
appoint new consuls at places not named in the act, and 
where they do not now exist; as, for instance, to retain 
the consul at Bilbao or Valencia, at. Archangel or Helsing¬ 
fors, or the commercial agent at Earache, or appoint a new 
one at the Moluccas, at Setubal, at Trapani, at Newport, 
or at Bergen. But no salary is allowed by the act to any 
such consul. 

How the act shall be construed in this respect, is not a 
-matter of light moment; for the consuls and commercial 
agents of the act do by no means cover all the seaports 
and centres of commerce and resort throughout the world, 
which are visited by our merchant ships and merchants, or 
which, in other respects, need the presence and service of 
some consular representative, of the United States. 

It certainly was not the intention of the act to cripple 
the commerce: of the country by depriving it of the benefit 
of vice consuls and consular agents, or of consuls, at any 
place where, in the judgment of the Executive, such an 
officer is needed. 

Doubtless, at its next session, Congress will, in its wis¬ 
dom, supply these deficiencies by suitable supplemental 
legislation. Meanwhile, we must construe the act as it 
stands. 

I think the only admissible interpretation of it, as it stands, 


31 


is to conclude that the consular officers, of whatever denomi¬ 
nation, for whom salaries are piovided by the act, are to 
pay over consular fees which they receive; and that all 
other consular officers, not thus provided for, have the 
right to retain all the lawful fees, which the several acts, 
including this, and the regulations of the Department, 
allow them to demand. 

This construction involves the inconvenience of some of 
the consular officers being compensated by means of fees, 
and others by salaries; which inconvenience, however, is 
of little moment, and need be of but temporary duration^ 
because easily remediable by Congress. Meanwhile, the 
change of relative interest, which the new state of facts 
will introduce between consuls and vice-consuls, or con¬ 
sular agents, seems to demand some corresponding regu¬ 
lations of the Department. 

It may be proper to observe, in this connection, that the 
provision of the act, which requires the consuls mentioned 
in it to pay over the fees which they collect, cannot 
apply to the judicial fees receivable by American consuls 
in China and Turkey, which are not “consular fees,” and 
cannot be considered by this act as withdrawn from the 
special destination ascribed to them by the 17th section of 
the act of August 11, 18i8, giving certain judicial powers 
to consuls of the United States in China and Turkey.* 
(ix Stat. at Large, page 276.) 

Indeed, the consuls at the Barbary ports, and in general 
in other Mohammedan countries, must not be confounded, 
in respect of functions or of regulations, with the consuls 
established in the countries of Christendom. Their con¬ 
dition is referable to peculiar doctrines of the law of nations ; 
and they are governed in many respects by particular 


2 


treaties and acts of Congress. (See Wheaton’s Elements, 
by Lawrence, page 167, note.) 

In my communication of the 25th ultimo, suggestions are 
made in the relation of-public ministers, as to a clause in 
this act which provides, among other things, that no other 
than citizens of the .United States, who are residents thereof, 
or who shall be abroad in the employment of the Govern¬ 
ment, shall be appointed as diplomatic officers, or as h;con¬ 
suls ior commercial agents; ” and that no other than citizens 
of the United States shall be. employed as “ vice consuls 
or commercial agents,” or as clerks in the offices of either. 

I reiterate, here, the opinion, that this provision has effect 
as recommendation merely, and no more, The President, 
by the advice of the Senate, lias the sole and complete power 
to appoint consuls. 

In respect of clerks, the provision is one of impossible 
execution. ITow are. consuls, and clerks of consuls, capa¬ 
ble of speaking and writing, in every case, the language of 
the country, to be. found among citizens of the United 
StatesU The, Government might produce such persons, by 
instituting the grade of u cloves consuls;” but it. has not 
done this.; and it is not the duty; of consuls to provide 
for the education of competent linguist clerks, citizens 
of the United States. Meanwhile, how is the public 
business to go. on ? What is to be done by the consuls 
in France, Spain, Portugal, the .Netherlands, and their 
colonies.; in Germany, Denmark, Russia, and in all the 
countries of Dutch, French, Danish, Spanish, Portuguese, 
America ? 

Consider, also, those consuls at .places where a small 
salary -only, is . alio wed, npUsuffi eient to pay clerk-hire, per¬ 
haps, and where the.consul Is not forbidden to transact 


B8 


business, without which he could not live. He hires and 
pays his own clerk. Is he forbidden to employ as clerks 
the only persons, whom it is morally possible for him to 
employ, and whom he most needs in his business? That 
is the apparent effect of this provision; and of necessity, 
therefore, it must be Treated as directory only, and not 
mandatory, on the consuls. 

As to the consuls themselves, however expedient it be, 
in general, to fill the consulates and commercial agencies 
with citizens of the United States, yet places exist where 
consular services are necessary, but where no American 
resides, or can be tempted to reside by the grant of a 
mere commission as consul, or appointment as consular 
agent. Surely, if the Government absolutely needs to 
have a certain service performed in a particular place, 
and there be no American to perform it, the service may 
be performed by a person not American. To assume 
the contrary, is to push considerations of mere policy to the 
impolitic result of rendering the performance of the public 
service impossible. 

Suppose that, along the whole coast of Norway, there can 
be no consuls, citizens of the United States. Are we 
therefore to understand, that all the acts of Congress, 
which assure consular aid to shipwrecked or distressed 
mariners, have become a nullity? That is the practical 
operation of this provision. 

When the act says, in words, that the Government shall 
not employ as consul or consular agent any person, who is 
not a citizen of the United States, what it says in effect is,— 
when a citizen of the United States happens, while abroad, 
to stand in whatever need of consular assistance, he shall 
not have such assistance, however great his necessity, 
C—5 


because no American resides there to be made consul or 
consular agent. 

What would be the legal operation of an act of Congress, 
'enacting directly, that no citizen of the United States 
abroad, who is in distress, or who needs the service of a 
notary or counsel learned in the law, shall be relieved or 
served unless he employs another American, whether such 
American exist or not? 

Cases occur, also, in which the fittest person for the 
vacant consulate at a given place, and the only person 
who can be induced to accept, is a merchant temporarily 
residing there, although by birth and education a citizen 
of the United States. - Is that person, by such temporary 
abode in a foreign country, disfranchised? 

That the general disability enacted by the words,—“no 
other than citizens of the United States who are residents 
thereof,”-—comprehends residence abroad, though retaining 
citizenship, is proved by the general structure of the 
phrase, which requires residence at home, in addition to 
citizenship, as the qualification of appointability. That such 
“residence,” made the condition of disability, includes tem¬ 
porary absence from the United States, such absence as 
does not lose domicil even, is proved by the only excep¬ 
tion to such disability, which consists of those, who shall 
be abroad in the employment of the Government u at the 
time oftheir appointment” How much residence abroad 
disqualifies? How much at home qualifies? A year, a 
month, or a day,? 

“A citizen of the United States, not resident thereof at 
the time” signifies,.in the context where it here stands, 
one who is in Paris, London, Rome, six months, one month, 
for the purposes of instruction or business’ Such person is 


capable of being appointed chief justice of the Supreme 
Court or elected President of the United States. Is he 
incapable of “being appointed” to a mere consular agency? 

The argument of mere legal construction stands thus:— 
Laws can be executed only through the instrumentality of 
agents of execution. There is a body of laws for the pro¬ 
tection of the rights of citizens of the United States in 
foreign countries, the lawful agents for executing which 
are consuls. Not to appoint consuls at the requisite places 
would be the effectual nullification of those laws pro tcnllo, 
just as the omission to appoint judges, marshals, commis¬ 
sioners, and other officers of the law, in a given district of 
the United States, would have the effect, in that district, to 
nullify the acts of Congress, and produce the suspension 
therein of all rights and remedies based on the Constitution 
of the Union. If the obstacle to such appointments con¬ 
sist in the words of a particular statute, which, if construed 
as mandatory, have all the consequences of annulment to 
the laws in force, we necessarily conclude that Congress 
did not intend such words in a mandatory sense. For all 
the laws in pari materia are to be construed together, so 
as from the whole mass to collect the legal intendment 
of Congress. 

In deference to this recommendatory enactment in the 
nature of mere departmental regulation, or to considera¬ 
tions of public policy, the President, in making appoint¬ 
ment of a citizen, may look to the fact where he happens 
at the moment to be; but he has, in my opinion, absolute 
right to select for appointment without regard to that 
circumstance, subject always to the approbation and con¬ 
sent of the Senate. 

It is the constitutional duty of the President to take care 



3G 


that the laws be faithfully executed. It is his constitutional 
right to nominate, and, with advice of the Senate, to com¬ 
mission, the agents by whom the laws are to be executed. 
If he cannot find fit agents of one description, lie may, 
nay, he must, employ others, or be false to his high obli¬ 
gations as the Executive of the United States. 

You suggest a question arising on the 14th section of 
the act, which forbids any consul or commercial agent to 
be directly or indirectly interested in any “profits derived 
from * * * sending home” discharged seamen or seamen 
in distress. 

The act of February 28, 1803, section 4, enacts that it 
shall be the duty of coi^suls “to provide for the mariners and 
seamen of the United States, w*ho may be found destitute 
within their districts respectively, sufficient subsistence and 
passage to some port in the United States, in the most reason¬ 
able manner , at the expense of the United States; ” and 
penalties are enacted to compel masters of vessels belong¬ 
ing to the United States to receive such seamen, on request 
of the consul, and transport them to the United States, 
receiving as compensation “not exceeding ten dollars for 
each person.” (ii Stat. at Large, p. 204.) 

Now, what is to be done in the case of ports, (and such 
ports exist,) where it happens that many seamen are dis¬ 
charged from whaling or other vessels, and no reasonable 
or direct means exist for transporting them to the United 
States, except in a vessel belonging to the consul, he being 
of the class allowed to transact business ? 

We cannot dispose of this question by the rule that pos¬ 
terior laws repeal prior incompatible ones. The act of 
1803, and the acts in amendment of it, are not repealed 
by the present act; on the contrary, they are expressly 


37 


recognised as in full force, and especially in this particular 
matter of the duty of consuls towards seamen of the United 
States. 

I suppose the expression in the act,“ u profits derived 
from * * * sending home” seamen,—refers to the ten dol¬ 
lars paid by the Government for every destitute seaman 
transported to the United States. This transportation, 
with the maximum price allowed, is a burden to the ship¬ 
owner, instead of a profit. If the prohibitory provision 
of the act be applied without exception, it will in effect 
relieve the ship-owner in many cases, but involve incon¬ 
venience to mariners, and additional expense to the United 
States 

I think this provision, which belongs by its nature to 
the class of matters of departmental regulation, must be held 
in law to be directory only, not mandatory, and so treated 
by the Department. 

Question has been suggested also, as to whether the dis¬ 
cretion given to consuls, in certain cases, by the act of 
July 20, 1840, regarding the amount of wages to be ex¬ 
acted of the shipmaster when the seamen are discharged 
in foreign ports, still continues. I think it does : the pres¬ 
ent act does not seem to contain anything affecting that 
point. 

There is a provision of the act, referred to already in 
another relation, namely, the main one of the 21st section, 
which demands consideration. It is in the following 
words: 

“ The act of April 14th, 1792, concerning consuls, &cV, is 
hereby so amended that, if any American citizen dying abroad 
shall, by will or any other writing, leave special directions for 
the management and settlement by the consul of the personal or 


38 


other property which he may die possessed of in the country 
where he may die, it shall he the duty of the consul, where the 
laws of the country permit, strictly to observe the directions so 
given by the deceased. Or, if such citizen so dying shall, by 
will or any other writing, have appointed any other person 
than the consul to take charge of and settle his affairs, in that 
case it shall be the duty of the consul, when and so often as 
required by the so-appointed agent or trustee of the deceased, 
to give his official aid in whatever way may be necessary to 
facilitate the operations of such trustee or agent, and, where the 
laws of the country permit, to protect the property of the de¬ 
ceased from any interference of the local authori ties of the coun¬ 
try in which he may have died ; and to this end it shall also be 
the duty of the consul to place his official seal on all or any por¬ 
tions of the property of the deceased as may be required by the 
said agent or trustee, and to break and remove the same seal 
when required by the agent or trustee, and not otherwise/’ 

In the execution of this provision, consuls will need to 
exercise much discretion and care. 

We. are to presume this enactment adds to, or other¬ 
wise changes, the pre-existing law ; and the -question is, 
in what respect? 

The provisions of the act of April 14, 1792, in relation 
to the matter, are, that, in certain cases, if any citizen of 
the United States die abroad, the consul, within whose 
consulate it happens, shall take possession of all “personal 
estateof the deceased, in the country where he dies, in¬ 
ventory it, sell it, collect and pay local credits and debts, 
and remit the balance to the treasury of the United States,' 
to be held in trust for the legal claimants. . 

The contingencies, in which the consul may thus collect 
the assets of a decedent, free them-from local incumbrance, 
and remit, them to the treasury, are throe, namely: 1. If 


the deceased shall have left no “legal representative” 
•within the consulate; 2, no “partnerin trade;” and, 3. no 
“trustee by him appointed to take care of his effects.” 

If, at any time before the collection and transmission 
of the assets shall have been completed, the “legal repre¬ 
sentative” of the deceased appears, then the authority of 
the consul in regard to the estate ceases, and the manage¬ 
ment of it passes into the hands of such legal representa- 
tive. 

The new act provides, in the first place, that if the 
deceased shall “by will or any other writing leave special 
directions for the management and settlement, by the consul , 
of the personal or other property which he may die possessed 
of in the country where he may die,” it shall be the duty 
of the consul to observe' those directions. 

The act does not say what consul ; but, by collation with 
the pre-existing law we may construe this to mean, the 
consul within whose consulate the party dies. 

The act in effect assumes further, that the consul is to 
take possession of “ personal and other property.” That is 
to extend the jurisdiction of the consul beyond what he 
previously possessed, and into doubtful regions. 

It is perfectly clear that nothing in the previous acts 
empowers the consul to sell any real estate of the deceased; 
nor can the provisions of the present act communicate such 
power, even if directed by will; for the will would have 
to be proved and allowed as such in order to pass real 
estate. Nor can the act be construed to intend what it 
apparently says, that in the “management and settlement ” 
of the estate, the consul is to observe any such directions 
as the deceased may have left “ by will or any other 
writing.’! If there be a will or any writing possessed of 


40 


testamentary value, there will be an executor or adminis¬ 
trator, with the will annexed, and he must settle the estate 
according to law. 

I presume the sole effect of this part of the section to be, 
that, in the performance of such acts regarding the estate 
as the consul may, by virtue of the . act of April 14, 1792, 
lawfully perform, namely, taking the custody of the prop¬ 
erty, preserving it from waste, collecting credits, paying 
local debts, and selling the personal estate for transmission 
to the treasury, the consul shall, in the absence or non- 
appearance of the executor, co-partner, or other “legal rep¬ 
resentative” of the deceased, observe such directions as the 
latter may have given him as to such mere provisional acts 
of consular intervention in the estate. 

The new act provides, in the second place, that “if such 
citizen on dying shall, by will or any other writing, have 
appointed any other person than the consul to take charge 
of and settle his affairs,” as “agent or consul,” then the 
consul shall officially aid such agent or trustee in his duty, 
and shall, so far as he lawfully may, secure the property 
of the deceased to such agent or trustee, as against the in¬ 
terference of the local authorities. 

This enactment, like the foregoing one, must be under¬ 
stood as having reference only to such acts of a lawfully 
appointed “ agent or trustee of'the deceased,” as any such 
“agent or trustee” may perform in the absence of the 
“legal representative ” of the deceased, who, on his appear¬ 
ance, will supersede, not only the consul, but any such 
provisional agent; and in case of controversy between such 
agent or trustee and the legal representative of the deceased, 
it will be the duty of the consul to aid the latter, to whom 
the paramount and exclusive right to control the property 
belongs in all circumstances. 


41 


To undertake to carry the authority of the consul be¬ 
yond this point, or in any other direction, would be to in¬ 
volve him in hazardous responsibility. 

A citizen of the United States is, in almost every sup- 
posable case, a citizen of some State or Territory of the 
United States, or of the District of Columbia. His private 
rights of property and of person depend, all but univer¬ 
sally, on the law of his State, of his Territory, or of the 
District of Columbia. No act of Congress makes general 
provision for the forms of deeds or wills, the distribution 
of estates of decedents, the regulation of contracts, or 
other things of that nature in the affairs of a citizen of the 
United States. No act of Congress can constitutionally do 
this in regard to the citizen of any State, whatever it may 
do as to the citizen of a Territory, or of the District of Co¬ 
lumbia. I, for instance, am a citizen of the United States, 
but a citizen, also, of the State of Massachusetts, whose 
laws govern my personal succession. In this respect, Con¬ 
gress has no constitutional power whatever, except in some 
one of my special relations to the Federal Government, as 
in the imposition of taxes, and in the other few and limited 
matters of federal resort. That general immunity from 
federal legislation in ordinary matters of private interest 
is my own imprescriptible right: it is also the sovereign 
right of my State. In like manner, it is the right of my 
heirs-at-law. I do not lose this right, nor do they, by my 
temporary absence from my State in public employment, 
or as a merchant, or traveller, or any other way, except 
such as may give me citizenship or local domicil in some 
foreign country, and thus place me and my personal rights, 
and those of my succession, under the jurisdiction of such 
C—G 


42 


foreign country. These positions are the elementary law 
of the condition of citizens of the United States. 

Furthermore, it is the all but universally received prin¬ 
ciple of the international law private, that the real estate 
of a decedent goes to his heirs-at-law, and that his personal 
estate is to be distributed according to the law of his domi¬ 
cil. (Story’s Conflict of Laws, ch. ix; Foelix, Droit Inter¬ 
national Prive, p. 161; Phillimore on Domicil, ch. i.) This 
rule cannot be changed by an act of Congress; for its 
continued existence, in so far as regards our own citizens, 
is of the rights of the States. 

Now, this provision of the act, in requiring the consul 
to settle the estate of a decedent according to his direc¬ 
tions r> by will or any other ivriting ,” or to deliver up the 
property to any agent or trustee whom he may have ap¬ 
pointed u by will or any other ivriting ,” makes reservation 
of u the laws of the country,” and so, perhaps, by impli¬ 
cation, admits exception of the laws of the decedent’s 
domicil, which, in pursuance of the law of nations, is re¬ 
spected by every country in Christendom. 

But, after all, this law of the domicil is the great excep¬ 
tion, which an act of Congress cannot empower consuls to 
disregard, and which they will disregard at their proper 
peril. 

When the present act requires the consul to deliver up 
the estate of a decedent, dying within his jurisdiction, to 
an appointee under his “will,” if it mean his executor, that 
the consul may do; because by “ will” is understood a 
valid testament, lawfully made and executed, by a person 
who is in all respects comjoos testancli: which question must 
be judged by the law of the decedent’s State. 

But, when the act proceeds to say that the consul must 



43 


obey such directions, regarding the settlement and the dis¬ 
posal of the decedent’s “personal or other property,” as 
the decedent may have given by “will or any other wri¬ 
ting" and deliver it over to, and protect in the possession 
of it, the agent, whom the deceased may have appointed 
“by will or any other writing,”—its injunction must be 
understood with the necessary legal reservations. 

Except in the mere temporary settlement, collection and 
custody of the property of a decedent, no agent appointed 
by will or otherwise, no public officer empowered by act 
of Congress, can safely venture to deal with a decedent’s 
estate; for either that estate has been disposed of by lawful 
testamentary disposition to devisees or legatees, or it has 
become the property of the creditors of the decedent, or it 
has descended upon persons legally entitled by marriage 
or kinship ; and, in either case, if it be personal property, 
it must pass through the hands of a duly appointed and 
judicially recognised executor or administrator. If we 
could suppose that the act intended to go beyond this, it 
would be necessary to scrutinize the force of the expres¬ 
sion,—“ will, or any other writing.” 

“Any other writing” signifies some writing, which has 
not the legal effect of a will, or it means nothing. In the 
phrase “will or any other writing,” the “other” excludes 
a will. 

Whether the alternative in this provision could have any 
possible effect on the estate beyond the legalization of acts 
of temporary custody, would depend upon the question 
what those writings are, other than a will , by which a citi¬ 
zen of one of the States of this Union, who may happen to 
die abroad, can impart to his personal property, after his 
decease, a direction different from that prescribed for in- 
testa tacy by the law of his State. 


u 


What is that writing, not possessed of the legal effect of 
a will of personal assets duly executed by a competent 
person, by means of which a citizen of New York or of 
Louisiana, dying in Paris during a temporary sojourn there, 
can take his property out of the ordinary course of succes¬ 
sion? I think it behooves the consul to consider this ques¬ 
tion well, before he presumes to follow, in anything heyoncl 
the acts of custody , settlement , and collection prescribed by the 
act of April 14, 1792, directions of the decedent by writing 
not possessed in law of the force of a testamentary disposition, 
or directions of any agent of the deceased, however nomi¬ 
nated, unless that agent be the duly appointed executor or 
administrator. Otherwise, the consul may be called to 
account by some creditor of the deceased, or by a lawfully 
appointed executor of his, or by his family and heirs-at-law. 

In short, the consul should bear constantly in mind that 
he cannot as consul administer on the estate, nor as con¬ 
sul aid any other person in so administering, without 
judicial authorization; and that the whole extent of his 
consular authority is to guard and collect the assets of a 
decedent, and to transmit them to the United States, or to 
aid others in so guarding, collecting, and transmitting them, 
to be disposed of here pursuant to the law of the dece¬ 
dent’s State. 

Finally, it may be proper to observe, as to the provision 
of the 25th section, by which the President is u authorized,” 
if he see fit, to bestow u the title of consul general” upon 
any consul of the United States in Asia or Africa, that this 
provision is of doubtful tenor, if it be intended to imply 
that, without it, the President cannot, with advice of the 
Senate, at any time appoint a v public officer of the class of 
consuls, and bearing the title of consul general. 


45 


In illustrate n of this remark, we have the fact that, in 
the civil and diplomatic appropriation act of the last ses¬ 
sion of Congress, there is an appropriation for the salary 
of a consul general for the British provinces in North 
America, while the general act supposes that consulates of 
this rank are to be confined to Asia and Africa. (Session 
Acts 1854-55, p. 763.) 

In truth, the office of consul general may be given, as a 
mere titular designation, to imply rank; but it more prop¬ 
erly signifies an office with special functions, well defined 
by the law of nations and public usage. The consul gen¬ 
eral superintends and directs, according to the instructions, 
general or special, of his Government, the consuls within a 
particular jurisdiction or country. (De Cussy, Reglements 
Consulaires, p. 70; Moreuil, Agents Consulaires, p. 18.) 

Such an officer possesses utility, and particular applica¬ 
tion, in foreign countries of extensive but definite circum¬ 
scription, in which there is no proper diplomatic represent¬ 
ative of the Government, such as the several great European 
colonies, or other governments of that order, in Asia, Af¬ 
rica, and America. In all t]ie countries of Europe, and in 
such of those of America and Asia as enter fully into our 
treaty system, we have, or may have, a minister, of what¬ 
ever title, who is of course, by public law, superior in rank 
to consuls, and their medium of communication with the 
Government. But, in the foreign dependencies of Eu¬ 
ropean powers, many of which are in themselves great 
states, with all the mechanism of local authority, and in 
some cases enjoying semi-independence under the admin¬ 
istration of a governor, a captain general, or a pacha, it 
becomes necessary that some consular person should have 
power to communicate with the supreme colonial or feuda- 


4<; 


tory chief, in behalf of his colleagues and his countrymen; 
and on the consul residing at the seat of Government will 
naturally devolve the functions, if not the title, of consul 
general. (De Clercq, Guide des Consulate, p. 28.) 

These considerations indicate that the selection and ap¬ 
pointment of a consul general, even more emphatically 
than that of consul, must belong to the treaty-making 
power in every political society, the power which initiates 
in foreign relations, and which our Constitution has en¬ 
trusted to the President in consultation with the Senate. 

Permit .me to add, in conclusion, that the suggestions, 
which official duty compels me to make, in regard to so 
many of the provisions of this act, of careful discrimina¬ 
tion between what is mandatory in a statute, and what is 
recommendatory only, are made with entire general defer¬ 
ence and respect for the legislative will of Congress, 

It happens continually, that phrases, of doubtful appar¬ 
ent significancy in the relation of constitutional powers, 
are found in acts of Congress. It would not be convenient 
to establish, as a rule, that the President must refuse to 
approve all such acts, however useful and just on the whole 
they may be. It is more convenient to follow the estab¬ 
lished rule of the Government, of reducing any such ques¬ 
tionable phrase to its true constitute ini value by construct 
tion, when the law comes to be construed and administered. 
Thus, when the statute says, that every collector of the 
customs shall have authority, with approbation of the Sec¬ 
retary of the Treasury, to employ inspectors, (act of Feb¬ 
ruary 4, 1815, s. 5,) it must be construed to mean that the 
Secretary may appoint and remove such inspectors; be¬ 
cause the power, here thus in words given to collectors, 
can by the Constitution be devolved only on the President 


47 


or a head of Department. (Mr. Legare’s Opinion, Mar. 24, 
1843, vol. ii, p. 1577.) 

So when, by the late convention with France, or any 
other, it is said, in words, that officers with consular func¬ 
tions and rights, vice consuls and consular agents, may be 
appointed by the consul, it means appointed by the Sec¬ 
retary of State on the presentation of the consul, and re- 
inoveable by the same authority. 

By affixing his signature to an act or a treaty containing 
such phrase, the President does not effect any change in 
the Constitution. He cannot take constitutional power 
in virtue of any clause of an act of Congress; nor can he 
so surrender it. The constitutional power of each of the 
three great departments of the Government, respectively, 
belongs to the offices, not the officers, and cannot, by any 
act or words of theirs, be withdrawn from the permanent 
and pervading authority of the Constitution. 

We know how difficult a task it is, in remodeling any 
great department of the public service, to give apt ex¬ 
pression to all which is included in the assumed theory of 
the act. It requires much circumspection and reflection 
to adapt successfully the new parts, of the system to the 
old ones; many lacunce will remain to be filled up ; some 
things will be disturbed, which it was not intended to 
touch; and when the judge or the admistrator comes to 
deal with the act of legislation as a practical matter, and 
to review all its provisions in their relation to one another, 
and to the pre-existing provisions of law, he finds himself 
driven, by inexorable force of logic, into consequences of 
construction not anticipated by the legislator. These un¬ 
foreseen consequences increase in degree or number in 
proportion as the legislative body indulges in the prevail- 


48 


ing disposition to enter into the field of mere administra¬ 
tive regulations, instead of devoting its attention to the 
superior and more important and much pretermitted duty 
of prescribing organic rules and generic principles of ad¬ 
ministration. These final reflections it seems not out of 
place to submit, on your account as well as my own, in 
explanation and apology of the many questions of con¬ 
struction, which have arisen, and could not fail to arise, on ' 
a measure of so much magnitude as that of remodeling 
the diplomatic and consular systems of the United States. 

Whatever of inevitable imperfection there may be, in this 
initiatory enactment in the right direction, will* of course, 
in due season, receive the attention of Congress. 

I have the honor to be, 

Yery respectfully, 

C. CUSHING. 


Hon. W. L. Marcy, 

Secretary of State . 


LIBRARY of congress 



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